• The Resale Of Second Hand Software Is Possible
  • May 2, 2013 | Author: Michael Rainer
  • Law Firm: GRP Rainer LLP - Bonn Office
  • The European Court of Justice (ECJ) has decided that the general permission of resale of software also applies, if the licenses have been downloaded from the Internet.

    GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart, Hanover, Bremen, Nuremberg, Essen and London www.grprainer.com/en explain: By its judgment delivered the third of July 2012 (C-128/11) the European Court of Justice (ECJ) has decided that resale of licences for second hand software is in general possible, even if the licences in question have been downloaded from the internet. The Federal Court of Justice, Germany, had made a reference to the Court of Justice in order to interpret the directive on the legal protection of computer programs.
    Under that directive a copyright holder who has marketed a copy in the territory of a Member State of the EU loses the right to rely on his monopoly of exploitation in order to oppose the resale of that copy. In its judgment the ECJ explains that the principle of exhaustion of the distribution right applies not only where the copyright holder markets copies of his software on a material medium but also where he distributes them by means of downloads from his website.
    In both cases the copy right holder sells the copy to the costumer, which involves a transfer of the right of ownership of the copy. In the opinion of the ECJ a restriction of the resale of copies downloaded from the internet is not necessary to safeguard the intellectual property concerned. However, the judgment of the ECJ is not a complete success for the sellers of used software: Dividing licenses and selling only parts of them is not authorized.
    Whoever is quicker with his ideas than others, has always the preference right. However, these ideas are often adopted by others and imitated. Due to spreading "piracy" and the infringement of copyright the protection of intellectual property is becoming more important today than ever before.
    If there have been violations of someone’s brand or someone has been reprimanded for a violation, this person should contact a copyright lawyer. He can provide a qualified and tailored advice and present all legal options.