License Agreement [Microsoft License Software]

The sale of used licenses was rendered by the Court of Justice of the European Union (CJEU) in 2012 after these chronological major court decisions: The judgment of the German Federal Court of Justice allowed the sale of OEM versions and DSP versions without the associated hardware.

–  Decision of the Federal Court of Justice of 6 July 2000, file no. I ZR 244/97

The first sale in the Community of the original of a work or copies thereof by the right-holder or with his consent exhausts the right to control resale of that object in the Community.

–  Extract from EU directive 2001/29/EC

The Regional Court of Hamburg has confirmed that trade in used Microsoft software is legitimate. This also applies to the re-sale of individual licenses from volume license agreements. The second acquirer of the license, as well as any subsequent acquirer of it, will be able to rely on the exhaustion of the distribution right and hence be regarded as lawful acquirers of a copy of a computer program and benefit from the right of reproduction provided for in that provision

–  Directive 2009/24/EC of the European Parliament and of the Council

The Swiss Cantonal Court in Zug decides that “Adobe can’t prohibit the resale of the program copy in terms of copyright after its initial sale”. This precedent-setting decision is considered a big victory for the free international software trade. An author of software cannot oppose the resale of his ‘used’ licenses allowing the use of his programs downloaded from the internet.

Court of Justice decision,  Case C-128/11 Used Soft GmbH v Oracle International Corp.

The initial acquirer of a copy of a computer program, accompanied by an unlimited user license, may resell that copy and his license to a new acquirer.”

–  Court of Justice decision, Case C-166/15 Aleksandrs Ranks and Jurijs Vasiļevičs

In conclusion, under EU law, software companies have no right to prevent users from selling their digital downloads to others; effectively, the software distributor’s rights to control distribution are exhausted after the first sale.

OEM (Original Equipment Manufacturer) versions offer the buyer the huge advantage of purchasing the same software at a significantly lower price. In Europe, the purchase, distribution, and use of OEM versions are completely legal. In other words, trading of OEM versions without binding to hardware is legally permitted. Legacy & Licensing [email protected]

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