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

The EuGH states that used software may be resold regardless of how it was acquired, this also applies to software purchased by download. If software acquired by download must be updated via the Internet, the purchaser of the used software is also entitled to this right to update. The selling first purchaser, according to the EuGH, may not keep a copy of the software.

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

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

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

Margin 81: Thus, when the copy of the program is resold by the first acquirer, the new acquirer may download the copy sold to him by the first acquirer onto his computer pursuant to Art. 5(1) of Directive 2009/24. This downloading is to be regarded as a reproduction of a computer program, which is necessary for the new acquirer to be able to use the program as intended.