Legal decision on used software
The European Court of Justice (ECJ), as the supreme judicial body of the European Union, has provided final clarity with its ruling and declared the trade in used computer programs to be lawful in principle.
The ECJ also ruled that second-hand software trading is permitted even if the software is transferred online.
On 17.07.2013, the Federal Court of Justice then fully confirmed the fundamental decision of the European Court of Justice with regard to the underlying legal issues.
And the ruling of the ECJ must also be applied to volume licenses and their splitting. This was confirmed by the Higher Regional Court of Frankfurt am Main in a case between Adobe and usedSoft.
In their reasoning, the 13 judges of the Grand Chamber clearly stated that the principle of exhaustion applies to every first sale of software. The ECJ even ruled that in the case of licences transferred online, the second buyer may re-download the software from the manufacturer: “In addition, the exhaustion of the distribution right extends to the program copy in the version improved and updated by the copyright holder“, the ECJ held. The Court thus clearly went beyond the Opinion of the ECJ Advocate General of 24 April 2012.
VOLUME LICENCES AND THEIR SPLIT UP LEGAL
In a later judgement of the Higher Regional Court Frankfurt am Main in a case between Adobe and usedSoft, the further consequences of the ECJ judgement were impressively confirmed: The OLG Frankfurt decided that the ECJ judgement is also applicable to volume license agreements and their splitting. On 11.12.2014, the Federal Court of Justice rejected an appeal by Adobe in its entirety (Case No. I ZR 8/13). Thus, the judgement of the Higher Regional Court Frankfurt was confirmed in the last instance.