Case law, legislation on used software

Since a landmark ruling by the ECJ on the legality of buying and selling second-hand computer programs, further judicial decisions have followed to legitimize it.

Legislation of a used software

Extract from EU Directive 2001/29 / ec, art. 28:

  • Copyright protection under this Directive includes the exclusive right to control distribution of the work incorporated in a tangible article. The first sale in the Community of the original of a work or copies thereof by the rightholder or with his consent exhausts the right to control resale of that object in the Community.

Extract from Directive 2009/24 / EC of the European Parliament and of the Council of the EU, art. 4:

  • The first sale in the Community of a copy of a program by the rightholder or with his consent shall exhaust the distribution right within the Community of that copy, with the exception of the right to control further rental of the program or a copy thereof.

Case law

Judgment of the European Court of Justice of 3.7.2012, Case C-128/11 UsedSoft GmbH/Oracle International Corp International Corp

  • European Court of Justice declares in 2012 the trade in second-hand software licenses in the EU admissible.
  • Accordingly, the exclusive right of a software manufacturer to distribute a licensed copy of the program with the initial purchase is exhausted. The Court states in its judgment that the principle of exhaustion of the right of distribution applies not only where the copyright holder (manufacturer) markets the copies of his software on a data carrier (CD-ROM or DVD), but also when he uses them Download spread from its website.
  • Questions of jurisdiction over used software in the context of this judgment are clarified by press release No. 94/12 of the Court of Justice of the European Union of 3.7.2012

Judgment of the Federal Court of Justice of 17.7.2013, Case I ZR 129/08

  • Federal Court confirmed in 2013 the legality of the trade in used software licenses.
  • One year after the judgment of the European Court of Justice, the BGH also dealt with the legality of the trade in second-hand software licenses – and confirmed the ECJ’s decree in full.
  • Questions of the jurisdiction to used software in the context of this judgment clarifies the press release of the Federal Court No. 126/13 of 18.7.2013

Judgment of the Vergabekammer Münster from 01.03.2016, Az. VK 1-2 / 16.

  • Awarding Chamber Münster decides that the exclusion of used software from tenders violates public procurement law.
  • The awarding chamber of the district government of Münster makes clear with its judgment that used software cannot be excluded with invitations to bid any longer. A commitment to new Microsoft software is considered a violation of the principle of product-neutral tendering.
  • The justification states that such a restriction is “no longer objectively comprehensible.” Used licenses are not deviating from the original licenses, but indistinguishable from the new version. ” 
  • The VK Münster recommends buyers of so-called used software to prove the uninstallation of the copy to let. This can be included in the contract to be concluded through an exemption agreement – further disclosure of the rights chain is not required and cannot be required.
  • Questions of jurisdiction for used software in the context of this judgment clarifies the press release of the awarding chamber Westphalia Az. VK 1-2 / 16

BGH judgment of 11.12.2014, Az. I ZR 8/13

  • The Federal Court of Justice decides that the ECJ ruling also applies to volume license agreements and their splitting.
  • In its judgment, the Federal Court rejected a revision of Adobe in full. Thus, software licenses from volume contracts may be sold individually. The acquisition of individual used licenses from volume licenses is therefore legally secure and does not entail any risks for buyers of used software.
  • Questions of the jurisdiction to used software in the context of this judgment clarifies the press release of the Bundgerichtshofes No. ZR 8/13

Decision of the Court of Justice of the European Union, Judgment in Case C-166/15 Aleksandrs Ranks and Jurijs Vasilevičs

  • Article 4(a) and (c) and Article 5(1) and (2) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs must be interpreted as meaning that, although the initial acquirer of a copy of a computer program accompanied by an unlimited user licence is entitled to resell that copy and his licence to a new acquirer, he may not, however, in the case where the original material medium of the copy that was initially delivered to him has been damaged, destroyed or lost, provide his back-up copy of that program to that new acquirer without the authorisation of the rightholder. 

Decision of the German Federal Court of July 6, 2000, file no. I ZR 244/97

  • A software manufacturer can’t assert its interest in the fact that a program version offered at a favorable price is only sold together with a new PC in such a way that it grants from the outset only a right of use limited to this distribution channel. If the program version has been marketed by the manufacturer or with his consent, the retransmission is free due to the exhaustion of the copyright distribution right, regardless of a content restriction of the granted right of use.

Attorneys’ opinion

/EXCLUSIVE/ Havel & Partners statement about used software

  • “Resale of used software is possible under certain conditions, based on the so-called exhaustion of the right to distribute this software.”
  • “The prerequisites that the right to the Used SW has been effectively exhausted and the SW has been made unusable upon the transfer, however, need to be objectively proven.”

Advokátní kancelář Mašek, Kočí, Aujezdský – www.eadvokacie.cz

  • Citation: “The first sale or other first transfer of ownership of an original or reproduction of a work in tangible form, effected by the author or with his consent in the territory of a Member State of the European Communities or another Contracting Party to the Agreement on the European Economic Area shall be in relation to such original or the reproduction of the work by the author of the distribution right to the territory of the European Communities and other Contracting Parties to the Agreement on the European Economic Area exhausted; the right to rent the work and the right to rent the work shall remain unaffected.”

Software manufacturers’ opinion

Microsoft Reactive SHS Letter to EU Customers-Partners – April 26 2017

  • The origin and conditions of software offered as secondhand has to be examined carefully, so that the requirements for exhaustion set by CJEU are actually met and can be proven when exhaustion is claimed.

Media

Lupa.cz

“Second-hand software can be legally purchased or sold, you just have to meet the legal conditions”

The Guardian

„A ruling by the European Court of Justice this week may have far-reaching implications for those seeking to sell second-hand digital games“

Cnet.com

„Sale of used software licenses is just fine, the European Court of Justice reportedly says that the rule applies to copies of software both on physical media and downloaded from the Internet“

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