OEM-Software

An OEM software version, which is sold together with the hardware (like in a new PC) cannot be limited to a certain distribution channel for the buyer. The buyer can resell the software by means of another distribution channel, as every buyer is entitled to the resale of a product which was once bought (in Germany and European Union) with the agreement of the originator based on the exhaustion principle, i.e. the right of sale of the producer is exhausted after the initial market placement.

This has been decided by the Federal Supreme Court of Justice (BGH) by its verdict of 6. July 2000 concerning the passing on of OEM-software, opposing the lawsuit of the software producer Microsoft®.

Whoever has once purchased the original software together with the hardware as an OEM version is free to resell it. He can thereby unbundle the package of hardware and software when selling it. There is only a possibility of additional individual restricting contractual agreements between buyer and producer.

The producer can therefore only once profit from the sale of his products. This verdict does not only refer to OEM software products, but even more to the trade with used software licenses, which were not limited to the sale of hardware.

Trials of software producers to limit the trade with used software licenses by certain contractual stipulations are therefore generally invalid, not only for OEM products.

Suggested reading:

--> next term: Open Source Software Licences

--> Purchasing Used Standard Software Licences.