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Case law 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 legal in principle.

The ECJ also ruled that second-hand software trading is also permissible if the software is transferred online.

On July 17, 2013, the BGH then fully confirmed the ECJ's fundamental ruling with regard to the underlying legal issues.

The ECJ ruling must also be applied 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 large chamber clearly stated that the principle of exhaustion applies to every first-time sale of software. The ECJ even ruled that the second purchaser of licenses transferred online may download the software again from the manufacturer: "Moreover, the exhaustion of the distribution right extends to the copy of the program as improved and updated by the copyright holder", the ECJ stated. The Court thus went significantly further than the ECJ Advocate General's opinion 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 consequences of the ECJ ruling were impressively confirmed: Namely, the Higher Regional Court of Frankfurt ruled that the ECJ ruling also applies to volume license agreements and their splitting. An appeal by Adobe was rejected in its entirety by the Federal Court of Justice on December 11, 2014 (case no. I ZR 8/13). The judgment of the Higher Regional Court of Frankfurt was thus confirmed in the last instance.

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