Case law on used software

The Court of Justice of the European Union (CJEU), the European Union's highest judicial body, has provided definitive clarity with its ruling and declared the trade in used computer programs fundamentally lawful.

The CJEU also ruled that trading in used software is permitted even when the software is transferred online.

On July 17, 2013, the Federal Court of Justice then fully confirmed the landmark decision of the European Court of Justice on the underlying legal questions.

The CJEU ruling also applies to volume licenses and their division. This was confirmed by the Higher Regional Court of Frankfurt am Main in proceedings between Adobe and usedSoft.

In its reasoning, the 13 judges of the Grand Chamber made it clear that the principle of exhaustion applies to every first sale of software. The CJEU even ruled that a second purchaser may download the software again from the manufacturer in the case of licenses transferred online: “Furthermore, exhaustion of the distribution right extends to the program copy in the version improved and updated by the copyright holder,” the CJEU stated. This went well beyond the opinion of the CJEU Advocate General dated April 24, 2012.

VOLUME LICENSES AND THEIR DIVISION ALSO LEGALLY

In a later decision by the Higher Regional Court of Frankfurt am Main in the proceedings between Adobe and usedSoft, the further consequences of the CJEU ruling were impressively confirmed: the Higher Regional Court of Frankfurt ruled that the CJEU judgment also applies to volume license agreements and their division. Adobe's appeal was dismissed in full by the Federal Court of Justice on December 11, 2014 (Case No. I ZR 8/13). The Higher Regional Court of Frankfurt's ruling was thus confirmed by the court of last instance.

• IT-Business: ECJ: Download licenses may be resold
• Financial Times Deutschland: Sound judgment on used software
• Spiegel.de: Used software may be resold
• Bild.de: Used licenses may be resold
• WELT ONLINE: ECJ: Software licenses may be resold
• ComputerBild.de: EU court: Sale of used software licenses permitted
• crn.de: Oracle loses dispute over downloadable software
• ChannelBiz: European Court of Justice rules in favor of UsedSoft
• Online-PC: usedSoft wins: European Court of Justice gives green light to trading in used software
• golem.de: Used software licenses may be resold
• ITReseller.ch: EU rules sale of used software legal
• n-TV.de: Trading in used software - resale generally permitted