Exhaustion Rule

The term Exhaustion Rule originates from the copyright i.e. licence right and states that at the very moment of the initial sale of a program copy of a software the distribution right of the copyright is exhausted. The exhaustion rule for computer software has been legally stipulated in § b69 c No. 3 Sentence 2 UrhG. The exhaustion rule is inevitable.

In this respect the Higher Regional Court Munich has rejected the claim of a software manufacturer by its final verdict of 12.02.1998, who opposed that a distribution partner resold an update-version of a software computer product for a much higher price than the full version, what b.t.w. technically seen was the case anyway.

The Higher Regional Court Munich - the motion of the plaintiff to issue a temporary order had already been dismissed by the district court - referred to the exhaustion rule of § 69 c No. 3 S.2 UrhG, where the right of distribution of the owner of the rights is exhausted if the to be duplicated version of a computer program has been put into transit, respectively been sold the first time. Already at the moment of the initial sale the exhaustion rule is applicable.

Two years later the lawfulness of the resale of OEM software was clarified unambiguously by the German Civil Code ( BGH) verdict concerning exhaustion rules. The BGH has explicitly made clear that the software manufacturers cannot effectively exclude the resale of software by licence conditions if the exhaustion rule is applicable.

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