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Case law on used software

As the highest judicial authority of the European Union, the Court of Justice of the European Union (CJEU) provided final clarity with its ruling and declared the trading of used computer programs fundamentally lawful.

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

On July 17, 2013, the Federal Court of Justice fully confirmed the CJEU’s landmark decision with regard to the underlying legal questions. 

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

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

VOLUME LICENSES AND THEIR SPLITTING ALSO LEGAL

In a later ruling by the Higher Regional Court of Frankfurt am Main in proceedings between Adobe and usedSoft, the further implications of the CJEU ruling were impressively confirmed: The Frankfurt Higher Regional Court held that the CJEU ruling also applies to volume license agreements and their splitting. The Federal Court of Justice dismissed Adobe’s appeal in its entirety on December 11, 2014 (Case No. I ZR 8/13). This conclusively confirmed the Frankfurt Higher Regional Court’s ruling. 

• IT-Business: CJEU: Download licenses may be resold
• Financial Times Deutschland: A wise ruling on second-hand software
• Spiegel.de: Used software may be resold
• Bild.de: Used licenses may be resold
• WELT ONLINE: CJEU: Software licenses may be resold
• ComputerBild.de: EU court: Sale of used software licenses is 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 the green light to the used software trade
• golem.de: Used software licenses may be resold
• ITReseller.ch: EU declares the sale of used software legal
• n-TV.de: Trading in used software—sales are generally permitted

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