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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 in its ruling and declared the trade in used computer programs to be fundamentally lawful.

The ECJ also ruled that second-hand software trading is permissible 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.

The ECJ ruling also applies 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 ordered that the second buyer may download the software again from the manufacturer in the case of licences transferred online: "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 stated. The Court thus went well beyond the Opinion of the ECJ Advocate General of 24 April 2012.




In a later decision of the Higher Regional Court Frankfurt am Main in a case between Adobe and usedSoft, the further consequences of the ECJ decision were impressively confirmed: The Frankfurt Higher Regional Court ruled that the ECJ ruling is also applicable to volume license agreements and their splitting. On 11.12.2014, the Federal Supreme Court completely rejected an appeal by Adobe (Az. I ZR 8/13). The ruling of the Frankfurt Higher Regional Court was thus confirmed in the final instance.


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