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, declaring the trade in used computer programs to be lawful in principle.

The ECJ also ruled that second-hand software trading is permissible even if the software is transferred online.

On July 17, 2013, the BGH then fully confirmed the ECJ's fundamental decision with regard to the underlying legal issues. 

And the ECJ ruling must also be applied to volume licenses and their splitting. This was confirmed by the Frankfurt am Main Higher Regional Court in proceedings between Adobe and usedSoft.

In their reasoning for the ruling, the 13 judges of the large chamber clearly stated that the principle of exhaustion applies to every first sale of software. The ECJ even ruled that in the case of licenses transferred online, the second purchaser may download the software again from the manufacturer: "Moreover, the exhaustion of the distribution right extends to the program copy as improved and updated by the copyright holder," the ECJ said. The Court thus went well beyond the ECJ Advocate General's opinion of April 24, 2012.




In a later 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 Frankfurt Higher Regional Court namely ruled that the ECJ ruling also applies to volume license agreements and their splitting. On December 11, 2014, the German Federal Court of Justice rejected Adobe's appeal in its entirety (Case No. I ZR 8/13). The ruling of the Frankfurt Higher Regional Court was thus confirmed by the court of last instance.