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NOVEMBER 2008 |
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KOMMUNE21: "Originating from second hand"
"Authorities are well advised to focus their interest on the subject of used software", advises Claudia Nottbusch, specialist solicitor for administrative law. Not only because of the significant savings opportunities of up to 50 percent, but also because in some cases it is even required under the public procurement law that suppliers of used software are to be particularly considered. This is based on principles to be applied under the public procurement law, such as the principle of competition and discrimination."The purchase of used software is lawful", explains the specialist solicitor. This does not only apply to individual licences on CD, but- according to the judgment rendered by the Regional Court of Munich - also to individual licences originating from Microsoft volume contracts. Therefore, tenders of reliable suppliers of used software must be generally considered within the scope of invitations to tender, as it was recently decided by the Award Chamber of Dusseldorf."
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AUGUST 2008 |
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WIRTSCHAFTSBLATT (AUSTRIA): AFTER ALL, USED SOFTWARE IS ADMISSIBLE
Prof. Dr. Friedrich Rüffler, one of Austria's leading experts for law on competition, does away with Microsoft's widespread allegation that the trade with used software were legally inadmissible.
It is rather true that the greater part of arguments speaks for the admissibility of the purchase of used software, emphasizes Rüffler. The basis for the trade with used software is the so-called exhaustion rule. It means that the developer's right of distribution is exhausted after he has offered his work for sale himself. This applies to software recorded on data carriers in the same way as it applies for example to a book. According to a judgment rendered by the Supreme Court, the purchase of software utterly is a purchase of things in possession which is subject to the exhaustion rule. Rüffler is convinced that this also applies in parallel to software which was transferred online.
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AUGUST 2008 |
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COMPUTERZEITUNG: JUDGMENT REGARDING USED SOFTWARE FINDS NO SYMPATHY
The decision passed by the Munich judges in the proceedings of Oracle versus usedSoft provokes protest among experts, reports the Computerzeitung in its online issue. Thus, Olaf Sosnitza, Professor for Copyright Law and Commercial Law at the Julius-Maximilians-University of Würzburg, criticises that the judgment was behind the times and untenable: "Contrary to the opinion of the Higher Regional Court it is completely irrelevant under copyright law aspects whether software is only looked at or used by the user." The statement of the Higher Regional Court that the legal position would be clear is also vehemently criticised. Sosnitza being a Judge at the Higher Regional Court of Nuremberg himself argued in reply that different courts have ruled that the trade with used software was legally allowed under copyright law.
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MAY 2008 |
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 : IT-BUSINESS: THE TRADE WITH USED MICROSOFT VOLUME LICENCES IS LAWFUL
The Regional Court of Munich declared the trade with "used" Microsoft licences to be lawful in principle, reports the prestigious trade journal IT-Business. The splitting-up of volume licences is lawful in cases when a master copy was surrendered to the the first-time buyer. Until now, software developers have continuously made "used" software customers feel uncertain about the legal situation. According to IT-Business, the companies Microsoft and Oracle are to be blamed for it in the first instance. They used to emphasize again and again that their approval was required when transferring software licences, particularly when transferring software licences originating from volume contracts. Yet, the Regional Court of Munich judged that the developer's right of distribution would be exhausted after transmission of a master copy. IT-Business emphazises that Microsoft would no longer have a say as to what is going to happen to its software after the first-time sale, unless such licences are copied illegally.
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MAY 2008 |
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CHANNELPARTNER: USEDSOFT IS ALLOWED TO TRADE WITH MICROSOFT SOFTWARE
By means of a judgment which has already become final and absolute, the Regional Court of Munich decided that individual software licences originating from Microsoft volume licence contracts can be resold "second-hand". IT-Medium Channelpartner reports that this means in concrete terms that in cases when Microsoft sells several rights of use contained in one volume package which includes for example only one master CD, the right of distribution is still exhausted regarding each individual licence. As a consequence, each of them can be resold individually and not only in form of the original package. With this judgment, the court rejected Microsoft's legal viewpoint that the buyer of a volume licence does not acquire individual licences, but only a right of reproduction.
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