Used Software – How It All Started
The article explores the origins of the market for used software, tracing its beginnings back to landmark legal decisions in Europe. It highlights pivotal court cases, such as the Oracle vs. UsedSoft ruling by the European Court of Justice in 2012, which affirmed the legality of reselling software licenses. The piece emphasizes how these decisions laid the groundwork for a sustainable secondary software market, promoting economic efficiency and benefiting both sellers and buyers.
European Court of Justice Ruling, 3 July 2012 (Case C-128/11): Legalisation of the Resale of Used Software Licences within the EU
In a landmark decision issued on 3 July 2012 (Case C-128/11), the European Court of Justice (ECJ) ruled that the resale of used software licences is lawful within the European Union. This ruling fundamentally reshaped the digital goods market by affirming that a software vendor’s exclusive distribution rights are exhausted after the first sale of the licence.
The Court held that the exhaustion principle applies regardless of the method of delivery. Whether a program is supplied on a physical medium such as a CD-ROM or DVD, or made available for download from the vendor’s website, the purchaser gains the right to resell it. This interpretation ensures that digital distribution is not treated differently from traditional physical formats in terms of copyright law.
Further clarification of this decision and its legal implications is available in the Court of Justice of the European Union’s press release No. 94/12, dated the same day.
The Court held that the exhaustion principle applies regardless of the method of delivery. Whether a program is supplied on a physical medium such as a CD-ROM or DVD, or made available for download from the vendor’s website, the purchaser gains the right to resell it. This interpretation ensures that digital distribution is not treated differently from traditional physical formats in terms of copyright law.
Further clarification of this decision and its legal implications is available in the Court of Justice of the European Union’s press release No. 94/12, dated the same day.
BGH Judgment of 11 December 2014, ref. I ZR 8/13.
On December 11, 2014, the German Federal Court of Justice (BGH) ruled that the principles established by the Court of Justice of the European Union (CJEU) regarding used software licenses also apply to volume licensing agreements, including the possibility of splitting them into parts.
In this decision, the German Federal Court of Justice rejected Adobe’s appeal in its entirety, thus confirming that software licenses obtained under a licensing agreement can be lawfully resold in separate units. Consequently, the purchase of individual used licenses under a volume-license does not create any legal risks for purchasers of such used software.
Further clarification as to how the case law treats the resale of used software in light of this decision can be found in the BGH press release in Case No. I ZR 8/13.
In this decision, the German Federal Court of Justice rejected Adobe’s appeal in its entirety, thus confirming that software licenses obtained under a licensing agreement can be lawfully resold in separate units. Consequently, the purchase of individual used licenses under a volume-license does not create any legal risks for purchasers of such used software.
Further clarification as to how the case law treats the resale of used software in light of this decision can be found in the BGH press release in Case No. I ZR 8/13.