Judgment of the Court of Justice of the European Union of July 3, 2012

The ECJ states that used software may be resold

The ECJ states that used software may be resold, regardless of how it was acquired; this also applies to software purchased by download. If software purchased by download has to be updated via the internet, the purchaser of the used software is also entitled to this right to update. According to the ECJ, the selling first purchaser may not retain a copy of the software.

Rz 77: It should also be recalled that, under Article 4(2) of Directive 2009/24, the copyright holder's distribution right is exhausted upon the first sale by him or with his consent of a tangible or intangible copy of his computer program in the Union. Consequently, he can no longer oppose the resale of that copy in accordance with that provision, notwithstanding any contractual provisions to the contrary.

Rz. 66: The exhaustion of the right to distribute a copy of a program under Article 4(2) of Directive 2009/24 only concerns copies that were the subject of a first sale in the Union ....

Rz. 70: The first purchaser who resells a tangible or intangible copy of a program in which the copyright holder's right of distribution ... has been exhausted must ... render his own copy unusable at the time of resale in order not to infringe the author's exclusive right to reproduce the computer program ....

Rz 81: Thus, when the first acquirer resells the copy of the program, the new acquirer may download the copy sold to him by the first acquirer onto his computer in accordance with Article 5(1) of Directive 2009/24. This downloading is to be regarded as a reproduction of a computer program which is necessary to enable the new acquirer to use the program as intended.