The German Federal Supreme Court Decides about the Trade with Used Software

In a decision of July 17, 2013 (UsedSoft II, I ZR 129/08) the German Federal Supreme Court has clarified the rules regarding the exhaustion of distribution rights of a copyright owner: The producer of computer software has stipulated in the license agreements with his customers that the right to use the computer program cannot be transferred. The defendant is trading with “used computer programs” and “used software licenses”. The District Court and Higher Regional Court have seen this as being unlawful. After receiving the response of the European Court of Justice to several questions hereto, the German Federal Supreme Court has referred back this case to the Higher Regional Court. The right to distribute a copy of a computer program can be exhausted in accordance with Article 4 Para. 2 of the Regulation 2009/24/EU. Preconditions, however, are that the copyright owner has given the right to the first purchaser to use a copy of the program without any timely limitation. Furthermore, any further purchaser of the copy of the program can only rely on the exhaustion of the distribution right if the first purchaser has destroyed its own copy.