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Trading in used software is legal

Trading in used software is legal


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The European Court of Justice ruled on the matter

The Court of Justice of the European Union (CJEU) declared that the sale of used computer programs it is basically legal. In the device, dated 5 July 2012, the CJEU ruled that the trade in used software it is also allowed if it is software transferred online.

The CJEU ruling was issued in response to a request from the German Federal Supreme Court (Bundesgerichtshof - BGH). If the latter were to comply with the decision - a fairly probable fact - all outstanding issues relating to the trading of used software would be resolved. In the past, in fact, software producers had clearly used the partly ambiguous legal provisions to discriminate against second-hand trade and intimidate users massively.

The ruling of the CJEU also creates certainties for the entire European Union from a legal point of view. You can therefore expect that trade in used software it will grow in all EU countries starting from the country of origin in which it has established itself, Germany. One of the most active companies in Europe in the trading of used software is based in Germany, UsedSoft, founded in 2003, which among other things also operates in Austria, Poland, the Czech Republic, Italy, France, Benelux and Scandinavia.

In its verdict, the college of 13 judges of the Grand Chamber ruled that the principle of exhaustion of copyright applies to any first sale of software. The CJEU also ruled that the second buyer can download the licenses from the manufacturer again software transferred online: "In addition, the exhaustion of the distribution right extends to the copy of the program up to the improved and updated version in possession of the copyright owner“, States the CJEU.

The principle of exhaustion of copyright states that the right of distribution of a manufacturer regarding his product runs out when he brought it to market for the first time. Therefore, a manufacturer no longer has any influence on what happens next to the same product. The new owner can resell it freely.

In the press release following the ruling, the CJEU stated that in the event that the copyright owner "(...) in exchange for a payment, enters into a license agreement with the user, through which the user himself obtains the right perpetual use of such copy, thus the copyright owner has sold the copy to the user and thus exhausts his exclusive right of distribution ”. With such a trade, ownership is transferred to the copy itself. "Thus, the rightful owner, even if the license agreement prohibits the subsequent sale, can no longer oppose the resale of the affected copy". What is evident in all the arguments of the court's judgment is that these apply to computer programs of all manufacturers.

The Court of Justice also ruled, "... that the copyright owner, if the application of the principle were limited to the exhaustion of the distribution right only to the copies of the program that are sold on a medium, would control the resale of copies that have been downloaded from the Internet and could demand compensation again, despite obtaining a fair payment already during the first sale of the copy concerned. Such a restriction on the resale of copies of programs downloaded from the internet would go beyond the purpose of safeguarding the specific object of the intellectual property in question ".

However, the CJEU places a restriction: the client-server licenses they cannot be split. The background: in the case of these licenses, these are individual computer programs that are located on a server and can be accessed by a certain number of users. In fact, in this case, splitting would not make sense. However, the arguments of the CJEU on the prohibition of splitting do not refer to volume licensing agreements, where several individual programs are sold in one package together and saved individually on each workstation computer.



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Comments:

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