EU: software licenses may be sold by consumers

The European Union's Court of Justice ruled today that software licenses may be resold.

By its judgment delivered today, the Court 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 (CD-ROM or DVD) but also where he distributes them by means of downloads from his website. Where the copyright holder makes available to his customer a copy – tangible or intangible – and at the same time concludes, in return form payment of a fee, a licence agreement granting the customer the right to use that copy for an unlimited period, that rightholder sells the copy to the customer and thus exhausts his exclusive distribution right.

The case concerned Oracle, which sued UsedSoft, a German company which bought and resold "used" software licenses which provided access to software downloads.


  1. hmmm, this is very interesting.  it got me thinking about knitting patterns.  does that mean that i can resell the knitting pattern download i bought for €6,- last year?  what implications does that have for other paid downloads, like books?

    1. Generally it is the same for all content, but keep in mind that the decision does not address DRM or possible subscriptions for services. That means that in many cases it won’t work in practice.

  2. This is a complex one from a commerce perspective.  Although on the face of it, it makes perfect sense, and gives us as consumers a little more control over our purchases (like we used to have), I can’t help but feel it’s a little different.

    When buying a hardback you have the choice to either pick up a shiny new one from a bookstore at full price, or a dog-eared one from eBay (etc.) for a reduced price.  But with electronic purchases things don’t age or degrade – they’re identicle, it’s not so much of a second-hand market as a secondary market.  As soon as there are enough owners of a particular digital product it could essentially destroy the business of the original creator, as there will be scores of people offering an identical product for less.

    It both makes sense and doesn’t, all at the same time.

    (incidentally I quite like the subscription system for software, my company uses a lot of subscription software, and the support and upgrades offered by a company that could lose you as a customer any minute are far superior to those who have already walked away with your money).

    1. But with electronic purchases things don’t age or degrade

      Hot damn! I’m rifling through my drawers right now to find that Windows 3.0 disc!

      1. :) Granted, it won’t factor into everything – and I’m not saying I’m against it, it’s just that it’s different from physical products in a similar way that copyright infringement is different from theft. They are fundamentally different and so there are cases they shouldn’t be treated the same.
        However I agree that in many (maybe most) situations the mechanics you describe will come into play and the publishers won’t lose out, I think that books will be one of the bigger mediums to see the adverse side of this though, maybe even mp3s and movies – but I guess many of these things go through limited production runs anyway, so maybe I’m worrying about nothing.

  3. I’ve worked for several companies and have, in the course of that work, spent millions of the company’s dollars on licenses for enterprise software packages. In a good number of those cases, the software has been outgrown, or for strategic and other reasons, we’ve moved on to another vendor’s product.

    I’ve long felt that smaller companies, or ones with different needs, could very well use the software we retired, and I remember having this exact discussion with a number of my colleagues from different firms at various trade shows and conferences.

    I hope that this ruling by the EU liberates companies to rationally limit their losses in cases where it makes sense.

    I hope (against hope) that this ruling doesn’t drive software vendors to apply crippling copy protection and DRM with greater ferocity simply to spite justice.

    And, of course, I hope that this sensible outcome can migrate across the Atlantic and arrive at these shores in short order.

  4. This court ruling puts a long awaited dent in the FUD (Fear, Uncertainty & Doubt) tactics employed by the software vendors.  However, worth noting that Usedsoft’s use of a Notary (in part, to hide where the licences came from) was deemed illegal by the German courts and Usedsoft is now also going through insolvency proceedings.  There are other secondary software licence suppliers whom adopt more transparent business models that do not rely on the Exhaustion Principle eg:

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