FREQUENTLY ASKED QUESTIONS
Can software licences be sold freely? Yes. The trade with used licences is generally legal. The legal foundation of the trade provides the so-called "Exhaustion Rule" in the German copyright law (UrhG), based on the fact that the developer's copyright expires the very moment the merchandise is sold. In its judgement of July 6th, 2000, the Federal Court of Justice (BGH) decided that the distribution right of the developer expires after the licence has been brought into transit by selling it initially and with the approval of the developer, and that the program referred to is "free for any further resale". This means, the developer can only once make profit of the sale of his product. Attempts from the developers' side to restrain the trade with used software licences through specific trade terms are incompatible with the principle of the exhaustion rule and the decision of the Federal Court of Justice, and thus are basically ineffective.
What do I get with the purchase of used software licences? Buying used software generally is an acquisition of rights, by which the purchaser acquires the right to use a computer program.
Do I need to prove an unbroken chain of previous owners back to the developer when acquiring used software? Generally the purchaser of used licences doesn't need to meet this demand. Once sold by the developer, a software licence is freely tradeable and negotiable, without having to prove any evidence.
However, the proof of the unbroken licence chain back to the developer is important as the purchase of used software licences usually is a so-called acquisition of rights. Yet, the right can only be sold if it exists. To prove this, the licence chain back to the developer is the perfect evidence.
The evidence is supported by the notarial proceeding executed by usedSoft, in which the notary testifies under specification of the delivery note and order number that the vendor has confirmed in writing to have acquired the licence legally and henceforth not to use it anymore. This certicifation is an effective way to protect oneself against the possible allegation of a developer of not having purchased legally the applied software.
Can software licences also be resold if they belong to a volume contract? In terms of copyright, these kinds of licences are also free tradeable, as the exhaustion rule can be applied to every single licence. The legitimacy of a contract clause determining that the licences can only be reassigned as a total, is seriously being doubted at least by experts. According to the German Civil Code (BGB), a purchaser has to be enabled to dispose freely of his property, and contractual restrictions as mentioned before are incompatible with this principle.
The decision of the Federal Court of Justice (BGH) refers to OEM licences. What is the legal position in the case of "normal", i.e. non-OEM licences? If no copyright restriction can be made in the case of licences whose distribution right has been attached to a specific hardware, this is even more so applicable to licences whose "operational base" is unlimited from the start.
Do I always have to register my second-hand software at the developer? There is no general registration duty with the software developer. Licence regulations adverse to that are basically ineffective, as a contractually determined mandatory registration is neither compatible with the exhaustion rule nor with the owner's freedom of command.
Does the software developer have to approve of the sale of used licences? Generally, licence resale does not require the approval of the developer, as he is generally not entitled to exert such kind of influence on a resale process. Therefore all clauses implying his approval are always ineffective. Again the reason is that a contractually imposed reservation of approval is neither compatible with the exhaustion rule nor with the owner's freedom of command.
Which countries allow the resale of used software licences? In the international copyright law, the so-called territorial principle is applicable: The developer has no global copyright validated worldwide, but a bundle of national copyrights. I.e. that in every single case the law of the country where the licence owner seeks protection for his copyright is to be applied.
However, the jurisdiction within the EU is comparable to the German legal practice, as the EU law is attached to a similar principle. Therefore, on a European as well as on a national level, the following is to be regarded: If a computer program has been brought into transit within the bounderies of the EU with the consent of the licence owner, the copyright of the developer is thereby exhausted.
Is it possible to provide used software licences in different language versions? If the software licence in a language other than German has been brought into traffic in Germany with the approval of the developer, this licence can be purchased second-hand just like any other licence. Compared to German versions there is no difference whatsoever, as in this case the exhaustion rule can also be applied.
What does the Swiss law say about used software trade? Generally, the resale of used software is permitted in Switzerland as well. "Used software" can be purchased and sold in Switzerland, provided that the software has been resold by the developer with the approval of the latter. The Swiss jurisdiction also applies an exhaustion rule considered in Art. 12 of the Swiss Federal Law about the copyright and other related protection rights (URG). In section 1 it says:
"If an author, male or female, has alienated a copy of a manyfactured merchandise or has approved of its alienation, this product can be resold or distributed in any manner.“
As concerns software, it specifically says in section 2:
"If an author (...) has alienated a computer program or has approved of its alienation, this program can be used or resold.“
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