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Legal situation of used software: Legal purchase and sale

The legal situation regarding the purchase of used software from usedSoft is clear. According to the European Court of Justice, the purchase is legal. Press release No. 94/12 on the verdict in case C-128/11 of the European Court of Justice (ECJ) states:

“An author of software cannot oppose the resale of his ‘used’ licences allowing the use of his programs downloaded from the internet ”

With its ruling, the ECJ, as the highest judicial body of the European Union, has provided final clarity and declared the trade in second-hand computer programs to be lawful in principle. The ECJ also ruled that second-hand software trading is permissible even if the software is transferred online.

Legal clarity

The European Court of Justice has provided clarity with its ruling. Trade in second-hand software is legal. And, by the way, it is also permissible if the software is transferred online.

Volume licences

Volume licences can also be resold individually. This is because it already follows from the ECJ ruling usedSoft/Oracle that the so-called “exhaustion” occurs for each individual programme that is purchased.

Principle of exhaustion

The basis for trading in second-hand software

The so-called principle of exhaustion is enshrined in the Copyright Act and states that the author’s right of distribution is exhausted as soon as he has put his work on the market for the first time. This means that after the sale, he can no longer determine which further route the work takes, and the first purchaser can decide whether and to whom he resells it without the consent of the producer.

The principle of exhaustion also applies to software.

The producer can only profit once from the sale of his product. Contractual clauses with which software manufacturers want to restrict trade in used software licences are not compatible with the basic idea of the principle of exhaustion and are therefore generally invalid.

Each individual software licence from a volume licensing agreement also falls under the exhaustion principle and may therefore be resold individually.

Important rulings

ECJ’s judgement provides for legal certainty throughout the entire European Union.

The European Court of Justice (ECJ), the uppermost legal body of the European Union, provided for final clarity with its judgement and declared trade in used computer programs to be fundamentally legitimate.The ECJ also ruled that the trade in used software is also permitted with software transferred online. The ECJ’s ruling should also be applied to volume licences and their splitting-up. The Higher Regional Court of Frankfurt (Germany) confirmed this in proceedings between Adobe and usedSoft.

In justifying their verdict, the 13 judges of the Grand Chamber clearly stated that the principle of exhaustion applies to each initial sale of software. The Court even decreed that second purchasers may even download the software from the manufacturer again with licences transferred online. “Furthermore, the exhaustion of the right of distribution extends to the version of the copy of the program upgraded and updated by the owner of the copyright,” according to the European Court of Justice. The Court therefore went further than the concluding opinion of the ECJ Advocate General on 24 April 2012.

Volume licensing and the splitting-up of licences is also legal.

In a later judgement by the Higher Regional Court in Frankfurt am Main in proceedings between Adobe and usedSoft, the further consequences of the ECJ judgement were impressively confirmed: the Higher Regional Court in Frankfurt namely decreed that the ECJ’s judgement should also be applied to volume licensing agreements and the splitting-up of these licences. Germany’s Federal Supreme Court fully dismissed an appeal from Adobe on 11 December 2014 (case I ZR 8/13). That represented the final confirmation for the ruling from the Frankfurt Higher Regional Court.

Read more in our FAQ.

More information:
Press release by the ECJ (PDF)

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