The sale of 'used' or 'second-hand' software licences has been a contentious area in recent years. The practice is less controversial where the software licences have no provisions preventing their transfer to third parties. However, more recently, companies such as usedSoft AG (usedSoft) have been reselling licence agreements which contain provisions expressly prohibiting such transfer.
In October 2005 Oracle brought an action against usedSoft in the German courts, claiming that usedSoft’s sales of licences of downloaded software to third parties amounted to copyright infringement. The business model operated by usedSoft was defended, in part, by virtue of its practice of ensuring that the original licensee provided a notarised statement confirming they were the lawful holder of the licences and that they no longer used the licensed software in question. After a ruling by the German Regional Court of Munich in favour of Oracle, the German Federal Court recently acceded to a request by usedSoft for the matter to be referred to the European Court of Justice (ECJ).
The ECJ must now consider how Directive 2009/24/EC on the legal protection of computer programs (the Directive) should be applied in this case. A statement from the German Federal Court indicated that the crucial questions will be whether or not the purchaser of a 'used' software licence is a 'lawful acquirer' under the Directive and to what extent the doctrine of first sale can be applied in these circumstances.