Kathi Christine SteinDer Gebrauchtsoftware-Handel nach den „UsedSoft“-Entscheidungen des EuGH und des BGH

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Software is a paramount factor in modern times‘ business. As a result there is a large market for re-sale of so called „used software“, in particular when it comes to business software. During the last years there has been an ongoing discussion about the lawfulness of such re-sale market, in particular in light of copyrights issues.

In 2012 the European Court of Justice decided in its famous „UsedSoft“ decision that the re-sale of software, that has been purchased online and downloaded, is legal. At first sight, the decsion seems to put an end to the previous discussion. However, when having a closer look, there are a lot of questions that still need to be answered and that have not – per se – been answered in the „UsedSoft“ decision: What are the consequences for different license models than the one scrutinized by the European Court of Justice? Is it legal to split up volume licenses when re-selling? How is the second purchaser bound by software agreements when there is no contractual relationship to the producer of the software? What are the consequences when re-sale is forbidden by contract? What are the consequences when there are technical measures preventing re-sale on a factual basis? The author gives answers to those and other questions, analysing and legally assessing the status quo of the current software re-sale market. By doing so, she also follows a dogmatic approach to the findings of the European Court of Justice and in particular analyses how the so-called „Erschöpfungsgrundsatz“ (principle of exhaustion) goes along with the particularities of a digital medium like software. In this regard, the relevance of the author’s analysis of the „UsedSoft“ decision also goes beyond the particular field of software, because questions of the lawfulness of applying the exhaustion principle are of importance in the digital context in general.

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