Information About the Sale of Software Licenses
Software that has been uninstalled and removed from a device may be legally resold (Case C-128/11, 2012).
The Court of Justice of the European Union (CJEU) ruled that:
“A software publisher cannot oppose the resale of its used licenses,”
thereby allowing the use of software downloaded from the internet.
The exclusive right to distribute a copy of a computer program covered by such a license is exhausted upon its first sale. This means that the resale of “used” or surplus software licenses is legal.
This ruling established a secure and lawful framework throughout the European Union, ensuring fair and healthy competition within the European software market.
The judgment further clarifies that:
- Perpetual software licenses may be freely traded. If you purchase a perpetual software license, you may resell it under the same conditions.
- The software publisher’s distribution rights are exhausted after the first sale of the software. Customers who purchase software on the open market are entitled to use the software they have legally acquired.
- Even if the software license agreement specifically prohibits resale, the copyright holder may no longer oppose the resale of that copy. License agreements are subject to European law, and any provisions that conflict with European legislation are considered invalid (this applies primarily to OEM software).
- There is no difference based on the method of distribution. Software may be distributed on CD/DVD (physical licenses) or online (digital licenses). The copyright holder may not demand additional compensation for the resale of the software license, as appropriate compensation has already been received during the first sale.
You can read more about this topic here:
https://curia.europa.eu/jcms/upload/docs/application/pdf/2012-07/cp120094ro.pdf
2000
The German Federal Court of Justice ruled that a computer program (OEM version) that has been placed on the market by the manufacturer, or with the manufacturer’s consent, may continue to be distributed even without the associated hardware.
German Federal Court of Justice Decision of July 6, 2000, Case No. I ZR 244/97
2001
EU Directive 2001/29/EC, published in May 2001, harmonized the principle of copyright exhaustion upon which the entire concept of used software is based.
“The first sale in the Community of the original of a work or copies thereof by the rightholder or with his consent shall exhaust the right to control resale of that object within the Community.”
— Excerpt from EU Directive 2001/29/EC
2005
In the request for a preliminary ruling submitted by the Hoge Raad der Nederlanden (Netherlands) in Case C-41/04, Levob Verzekeringen BV and OV Bank NV v. Staatssecretaris van Financiën (May 2005), the Court stated:
The first sale of a copy of a computer program within the European Community by the copyright holder or with their consent exhausts the right to distribute that copy within the Community (Article 4(c), second sentence, of Directive 91/250).
Consequently, the original purchaser may effectively transfer ownership of the reproduced copy to a third party without requiring the author’s consent.
As the lawful purchaser of the original data medium, a third party is also entitled to use the software recorded on that medium in accordance with its intended purpose.
A contractual prohibition on transferring the right of use agreed between the manufacturer and the first purchaser is not binding on third parties.
2006
The Regional Court of Hamburg confirmed that the exhaustion of copyright also applies to individual copies of computer programs acquired through Microsoft’s volume licensing agreements.
Regional Court of Hamburg Decision, Case 315 O 343/06
2009
“The first sale in the Community of a copy of a computer program by the rightholder or with his consent shall exhaust the distribution right within the Community of that copy, with the exception of the right to control further rental of the program or a copy thereof.”
— Directive 2009/24/EC of the European Parliament and of the Council
2012
In the landmark UsedSoft v. Oracle case, the Court of Justice of the European Union ruled:
“The author of a computer program cannot oppose the resale of its ‘used’ licenses that permit the use of software downloaded from the internet.”
“The exclusive right of distribution of a copy of a computer program covered by such a license is exhausted on its first sale.”
“The exhaustion of the distribution right extends to the copy of the computer program as corrected and updated by the copyright holder.”
“The original acquirer of a tangible or intangible copy of a computer program, whose distribution right has been exhausted, must make their own copy unusable at the time of resale.”
— Court of Justice Decision, Case C-128/11, UsedSoft GmbH v. Oracle International Corp.
2016
The original purchaser of a copy of a computer program accompanied by a perpetual license may resell that copy together with the license to a new purchaser.
— Court of Justice Decision, Case C-166/15, Aleksandrs Ranks and Jurijs Vasiļevičs