Buy Used Software? – IT-ZOOM

In times of tight IT budgets, it is not surprising that more and more medium-sized companies access to used software licenses. Trade in those same was a long time in a legal gray area and therefore often led to legal battles between software vendors and second-hand dealers. Since the judgment of the European Court of Justice (ECJ) from 2012, and the confirmation by the Bundesgerichtshof (BGH) in 2013, there is now clarity: “The ECJ rulings and Supreme Court at that time were a sensation and caused a few surprises. They gave not only formal go-ahead for the resale of used software, but also for trading in used Download software simultaneously with, “concludes Walter Lang, Managing Director USC GmbH, together. Sometimes manufacturers tried in the judgment to prohibit the resale on the conditions, but “occasionally to be found in software contracts clauses prohibiting the resale of the software, are ineffective,” said Michael Helms, CEO of Soft & amp; Cloud AG, additionally.

Basically, the trade with used software is based on the principle of exhaustion of copyright. After that, the right of distribution of a manufacturer’s exhausted his product in the moment in which it was first placed on the market with his consent.

One of the few restrictions on the resale of used software of the ECJ in 2012 had adopted the so-called splitting prohibition. However, the used software trading saw it as not a fundamental limitation, but interpreted that only the splitting of individual licenses is meant by multiple sub-licenses. Software vendors such as Microsoft and Adobe, however put the ban in the direction of volume license agreements, according to which the division and the sale of individual licenses from these packages is not permissible. These would often be sold to large corporations or educational institutions at a discounted price and should therefore be regarded as a dedicated unit, so the reasoning. Producers feared, customers could discover with the resale of licenses purchased too much a business model. “The software maker see the second trade as a threat. They probably have to get used to this form of competition, after they have been mostly occurred as a monopolist, “Helms tries to explain the behavior.

According to the Bitkom 20 billion euros were in the past year in this country reacted with software. Estimated EUR 18 million was accounted for by used software – so much for the concern of manufacturers. However, the market volume is growing steadily, and Michael Helms estimates the total potential for Germany to around 380 million euros. “But the opportunities to act software needed perspective increasingly by the growing range of leasing models and the fact that software has become physically bound by User ID or the PC,” says Walter Lang.

The fact that the turnover is still in its infancy, Michael Helms justified by the nature of the used software as an intangible product. “Unfortunately, so buzz a lot of well-intentioned but ill-researched advice through the Internet. This ensures irritation for many customers. ”

splitting allowed

With the ruling of December 2014 – its decision justification exists only since June of this year – the BGH decided in the last dispute and the splitting prohibition restricted , A brief excerpt from the judgment: “… If the original purchaser (…) purchased a license that allows the use of multiple independent copies of the computer program (called volume licensing), he is entitled to the right of use of the program concerned for resell a body designated by number of users and to use for the remaining number of users continues. The individual licenses is each separate usage rights, which can be transmitted independently, “said the judges of the Supreme Court.

The licenses acquired through volume contracts may now therefore also be sold individually. Nevertheless, the acquisition of example is not without risk, ” is the transfer of volume licenses from non-EU countries (USA, India, Taiwan, China) to the Microsoft licensing rules (EULA) is not permitted. One use of such licenses is not therefore validly “warns Walter Lang. In addition, he recommends, with a view to the sale of banned client-server software licenses in principle to acquire or resell any Microsoft licenses from split volume license packages.

low Used

Especially for small and medium enterprises are the main argument for the purchase of used licenses, the lower cost. 35 to 40 percent savings compared to the original price was normal for used software, it is of appropriate dealers, the functionality remains the same, of course, and sometimes even includes services such as updates and patches. This saving is mainly due to the fact that an update example to the latest operating system version is not necessarily always immediately. Especially for the user is connected with it in terms of design or functionality not necessarily an improvement. Companies react rather hesitantly in the transition to newer versions, not least because existing software products do not run sometimes on a new operating system. Therefore, the eighth company to unified software releases and access to previous versions in order to avoid compatibility issues. At the same time can not only be saved in this way cost, but with a view to necessary staff training and resources and expenditure. However, care should be taken that it is in the software is the standard version and not a specially developed variant individual on the acquisition.

The software offered for resale relate respective second-hand dealers frequently by large companies who have switched to newer versions or feature by restructuring and workforce reduction over vacant licenses. Even in bankruptcy cases, demand can acquire licenses. Tend to acquire companies “often more software licenses than they actually need. On the one hand, because they want to avoid unpleasant surprises during audits from software manufacturers, on the other hand, because they often do not know which software products and use rights are present at all, “complains Anton Hofmeier, Regional Vice President Sales DACH Flexera Software, the setting of IT managers. This quickly creates a demand, which is partially greater than the supply, because the company of their surplus licenses are unaware.

In order to prevent that with bulging licenses Schindluder is driven, the ECJ case law provides the proof of the entire chain of rights and a clear deletion confirmation previous owner before. In addition, a person who resells the Licenses, delete the appropriate number of its copies of the program so that they can no longer be used – burden of proof included. Also, the license agreement, the original purchaser of has concluded with the manufacturer, must be passed. “When buying software licenses should pay attention to a transparent license transfer – via the Microsoft license transfer form with the original signature of the original owner and the deposit of the licenses used in the company’s own VLSC portal” advises long.

Unpopular rental models

Boost Gets the business of second hand licenses also by changes in the business model of large software vendors. This set for some time increasingly on the sale of fixed-term rental licenses in conjunction with cloud services. Especially software-as-a-service offerings (SaaS) to take. “The manufacturers fear a drop in their turnover in software sales and have started for this reason therefore, their business model – also against the interests of the user – switching to rental software and offers from the cloud. A greater dependence on suppliers can hardly imagine, “noted Axel Susen, Managing Susen Soft on. As law looks the software with a possible “subletting”, has not yet been addressed.

Because the cloud-use out of the question comes for many SMEs and because subscription products at first sight indeed appear more favorable, on the whole period calculated but are more expensive, companies rely rather on previous versions, to these can call their own can. In addition, the supply of maintenance and service offerings is “for used software currently very confusing and the actual value of deals therefore difficult to assess. Hoped for savings can turn so quickly into negative territory once ongoing maintenance costs to consider to come into play “, are Hofmeier.

Used software is still quite a good way to protect the IT budget, without fear of legal consequences. How great the potential really is and what impact the availability of cloud services will have on the software trade still remains to be seen.