Case summary :: The right to resell downloadable software

Daniela Bartolo | 16 Oct 2012

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In case between UsedSoft GmbH and Oracle International Corp (Case C-128/11) the point of contention was whether a copyright holder of software may oppose the resale of second-hand software licences for use of software that is downloadable from the internet.

In this case, Oracle initiated proceedings against UsedSoft for its business activity of re-selling licences it acquired from Oracle customers. UsedSoft offered its customers, who are not yet in possession of the software, the possibility of downloading the software directly from Oracle’s website after acquiring from UsedSoft a licence that had been used by another use. In addition, UsedSoft customers that already have the software may purchase a further licence or part of a licence for additional users, consequently allowing the possibility of that software is downloaded to the main memory of work stations of other users.

Oracle argued that this was in breach of the non-transferable user right granted exclusively to a customer for an unlimited period for internal business purpose. It requested that the German Court order UsedSoft to cease its activity.

Oracle argued against the applicability of the principle of exhaustion of distribution right after first sale (discussed hereunder) in the case of user licences downloaded from the internet. The German Federal Court of Justice referred the dispute to the ECJ for a ruling on whether the Directive on Legal Protection of Computer Programs applied to the facts at hand.

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