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Floodgates for the resale of used software opened
This is just a quick update on an important change as regards software licensing in Germany.
The past situation:
In Germany, the so-called "principle of exhaustion" (§ 69 c (3) (2) UrhG), which provides that work pieces which have been put into circulation with approval of the entitled person, can
be resold without the need of any further approval, only applied in respect to the final sale of software on a tangible device (USB-stick, CD-ROM) up to now. The sale of software via download was seen by many Courts as an impediment to the application of this principle and thus an impediment to reselling the very software, wherefore most software companies (surprise) only handed out a code for an online-download thus preventing the resale of the software by the customer.
The case:
UsedSoft, which markets used software licenses, including user licenses for Oracle computer programs, promoted an ‘Oracle Special Offer’ in 2005 in which it offered for sale ‘already used’ licenses. Customers of UsedSoft were handed download codes of already existing licenses. Oracle brought proceedings in the District Court Munich seeking an order that UsedSoft cease this practice.
The Case went up to the German Federal Supreme Court (Bundesgerichtshof) which referred the question on the principle of exhaustion to the ECJ.
The issue
The German Federal Supreme Court i.a. asked the ECJ whether the right to distribute a copy of a computer program is exhausted under the second sentence of Paragraph 69c(3) of the UrhG, which transposes Article 4(2) of Directive 2009/24 irrespective of the way of sale.
The judgment:
"It makes no difference, […], whether the copy of the computer program was made available to the customer by the rightholder concerned by means of a download from the rightholder’s website or by means of a material medium such as a CD-ROM or DVD"
The consequence:
Any sale of the software within Germany will be interpreted in the light of this judgment in the future. I.e. it is no longer possible to hinder the resale of "used" licenses.
The full text is available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62011CJ0128:EN:HTML
