Legal situation for trading in used software

The legal situation is clear: trading in used software is permitted - regardless of whether it was originally purchased as a data carrier or as a download.

The European Court of Justice (judgement C-128/11 of 3 July 2012, "UsedSoft/Oracle") and the Federal Court of Justice (judgement of 11 December 2014, I ZR 8/13) have confirmed this at the highest level. This is based on the so-called exhaustion principle of copyright law: as soon as a software licence has been placed on the market in the EU for the first time with the manufacturer's consent, it may be resold - provided that certain legal requirements are met.

What does that mean in concrete terms?

With the purchase of a software licence, the buyer acquires the right to legally use the purchased copy - and to resell it if necessary. As a rule, this right also includes existing update and downgrade authorisations. It is irrelevant whether the software was provided on a data carrier or via download.

Clauses in licence agreements that are intended to exclude resale are invalid. Copyright naturally remains with the manufacturer, but this is not affected by the used software trade: It is not a question of unauthorised duplication or "pirated copies", but of passing on products that have already been licensed but are no longer used.

Obligations for resale

Four key conditions must be met for the trade in used software to be legally compliant:

Perpetual licence for a fee: The manufacturer must have sold the licence for an appropriate remuneration that corresponds to its economic value. In addition, the first purchaser must have been granted a permanent right of use.
First sale in the EU / EEA: The licence must have been sold for the first time in the European Union or the European Economic Area with the consent of the copyright holder.
Making the first purchaser's copyunusable: The original purchaser must make their copy completely unusable - i.e. uninstall on all devices and no further use after the transfer.
No splitting of licences: Multi-user or volume licences may not be split into partial rights and resold individually. They must be transferred as a whole.

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