Used software questions go to Europe's highest court


Julia Vogtmeier

In the digital world, the online transferability of software is an important feature for software users. It makes the purchase of software easy and uncomplicated.

The so-called ‘used software’ market profits from this digital transfer. Used software is software that is purchased, used and then sold on to another user. There are several companies that have specialised in selling this kind of software, which has had a strong impact on the software industry.

Nearly all software is protected by copyright. Under the German Copyright Law, the owner of the copyright has the exclusive right to distribute the protected software and to determine the conditions under which it can be used. In the past, the resale of software has not been problematic.

A resale of software that is stored on a physical medium (CDs and DVDs, for example) is permitted without the consent of the copyright owner, as long as the copyright owner has already consented to the distribution of the software within the EU. This follows from the principle of exhaustion of copyright under the German Copyright Act, which is in accordance with the first clause of the second paragraph in Article 4 of the Software Directive (2009/24/EG). The directive says:

software, CJEU