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"A software producer cannot oppose the resale of his used licenses (...) The exclusive right to distribute a (...) program copy is exhausted with the first sale."

 

Legal situation regarding the trade with used software

ECJ, judgment of 3.7.2012, Case C-128/11

Software producers cannot defend themselves against the resale of used software. The exclusive right to distribute the program copy is exhausted with the first sale. In this judgment, the Court states that the principle of exhaustion of the right to distribution applies not only when software copies are sold on data carriers but also when they are distributed by downloading from the company's website.

Judgment of the Münster Public Procurement Chamber of 01.03.2016, Ref. VK 1-2/16

The exclusion of already used software from the tenders violates public procurement law. The Public Procurement Chamber of the Government of Münster thus clarified that used software can no longer be excluded from tenders. The commitment to new software from Microsoft violates the principle of neutrality in the tendering process. Such a restriction could no longer be objectively justified. Used licences were not deviations from the original. On the contrary, they cannot be distinguished from the original version. VK Münster recommends that purchasers of used software obtain a certificate certifying that the copy has been uninstalled. This could be agreed upon in the contract by a so-called exemption agreement. A further marking of the rights chain is not necessary and cannot be claimed.

Judgment of the Federal Court of Justice of 17.7.2013, Ref. I ZR 129/08

With its decision of 2013, the BGH confirmed that the trade with used software licenses is lawful. About one year after the European Court of Justice, the BGH also dealt with the legal situation of the trade with used software licenses. It confirmed the decision of the ECJ in its entirety.

Federal Court of Justice, ruling of 11.12.2014, Case I ZR 8/13

The German Federal Supreme Court ruled that the ECJ's ruling is also relevant for volume license agreements and their splits. With this ruling, the Federal Court of Justice dismissed Adobe's appeal in its entirety. Therefore, it now applies that software licenses from volume license agreements may be sold individually. The purchase of individual used licenses from volume licenses is thus legally secure and is in no way risky for the buyers of used software.

Wiresoft Ltd. & Co KG is a reliable partner for the purchase and sale of used volume licenses. We only offer original goods and have their supply chain checked by auditing firms. The same applies to the uselessness of licenses in case of previous owners. With the purchase you will receive all documents you need for the legally compliant use of the used software!

OLG, judgment of August 2016, ref. 406 HKO 148/16

The Hamburg Higher Regional Court has ruled that no disclosure of the chain of rights can be demanded. With this decision, the Higher Regional Court prevents the statement that the disclosure of the chain of rights, i.e. the previous owner of a license, is necessary for the trade with used software.

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