Dispute over resale of used software – Digitalfernsehen.de

The Supreme Court and the Court made one thing clear in their judgments about second-hand Software: Used software may be sold, even if the software companies such as Microsoft do not like still

that the software companies in the sale of used software is a thorn in the side, showing a letter from Microsoft to its partners and customers. It specifically mood is operated against used software dealer. For years already exists the dispute between software vendors and companies on trade with used software. In the dispute is fought with no holds barred, eventually it comes to a highly lucrative market.
central issue of the dispute is the question of whether the resale or transfer the right of use is allowed. The trade with used software is based on the principle of exhaustion of copyright law. After that, the right of distribution of a manufacturer’s Leading exhausted its product in the moment in which it was first placed on the market with his consent.

for the topic was the year-long and passing through all instances of dispute between the US software manufacturer Oracle and the used software dealer UsedSoft. In the course of the proceedings, the Court had decided in 2012 on the submission of the BGH that used software may be resold.
The European Court noted in its judgment (Az. C-128/11) from that of the principle of exhaustion of the distribution right applies not only when the copyright holder of the copies of its software on a disk (CD ROM or DVD) markets, but also when he spreads by downloading from its website.
If the copyright holder of its clients namely – whether corporeal or incorporeal – copy available, and it closes at the same time to a payment into a license agreement by which the buyer gets the perpetual right to use this copy so it sells this copy to the customer and thus exhausts his exclusive distribution right. Such a business ownership is transferred to the copy. Thus, the right holder, even if the license agreement prohibits a subsequent sale, no longer oppose the resale of that copy. The Supreme Court had then fully connected to the ECJ ruling, confirmed the legality of the software used trade and implemented in accordance with national law.

Microsoft is sounding the battle

That the software company in spite of everything is still the trade with used software an eyesore, impressively shows a letter, which sent the software giant Microsoft to its partners and customers in May 2014.. The used software traders – writing, it seems, the targeted control of a competitor is.
Microsoft has in the letter clearly indicates to acquire second hand software, since there was still considerable uncertainty as to the legality and the actual level of use. The buyer of a used software can acquire the right to use a copy exhausted only under certain circumstances.
Thus the software must have been originally placed on the market with the consent of the copyright holder. In addition, the license for the software should have been granted in return for the payment of a fee. In addition, the rights holders must have the original buyer granted the right to use the software for an unlimited period. Improvements and updates that containing the downloaded from the subsequent purchasers computer program compared to the downloaded by the original computer program would be covered by a contract concluded between the copyright owner and the original buyer maintenance contract. In addition, however, the original licensee must have made his copies useless.

Many Forderugen

As these requirements can be met, must in future be clarified yet conclusively, so Microsoft in its letter. Until then, there is an uncertainty with regard to the Licenses and software should only be purchased from authorized dealers or associates. A clear indication to decide against used software, also serious,.
Cologne IT lawyer Christian Solmecke declares however: “The fact that those conditions from reputable dealers Used software such as ReLicense AG have long been met, is not mentioned.” So some of the mentioned in the letter Microsoft’s requirements since 1993 already existed as an EU rule of law and would be implemented by the companies. Both the Court and the Supreme Court had made their judgments clear that the resale of used software is permitted.
“That constitute a serious and undesirable for companies like Microsoft competition the dealers of second-hand software, demonstrated not least by the letter. Reputable used software traders but meet all legal requirements. This may not like Microsoft, legally have customers from reputable acquired used software not worry, “said Solmecke on.
The last word in the subject over used software, so much seems certain, had not yet spoken, the Cologne lawyer admits, however.