Legal Notice

Case law on used software

The European Court of Justice (ECJ), as the highest judicial body of the European Union, has provided final clarity with its ruling and declared the trade in used computer programs to be fundamentally legal.

The ECJ also ruled that the sale of used software is permissible even if the software is transferred online.

On 17 July 2013, the Federal Court of Justice (BGH) fully confirmed the ECJ’s fundamental decision with regard to the underlying legal issues.

The ECJ ruling also applies to volume licenses and their splitting. The Higher Regional Court of Frankfurt am Main confirmed this in a case between Adobe and usedSoft.

In their reasoning, the 13 judges of the Grand Chamber clearly stated that the exhaustion principle applies to every first sale of software. The ECJ even ruled that the second purchaser of online transferred licenses, the software may be downloaded again from the manufacturer: "Moreover, the exhaustion of the distribution right extends to the copy of the program in the version improved and updated by the copyright holder," the ECJ stated. The Court thus went significantly beyond the Opinion of the ECJ Advocate General of 24 April 2012.

VOLUME LICENSES AND THEIR SPLITTING ARE ALSO LEGAL

In a subsequent ruling by the Higher Regional Court of Frankfurt am Main in a case between Adobe and usedSoft, the further consequences of the ECJ ruling were impressively confirmed: The Higher Regional Court of Frankfurt ruled that the ECJ ruling also applies to volume licensing agreements and their splitting. The Federal Court of Justice dismissed Adobe's appeal in its entirety on December 11, 2014 (case no. I ZR 8/13). This upheld the Higher Regional Court of Frankfurt's ruling in the final instance.