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FAQ

1. What is the legal situation regarding the saleability of a used software license?

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In principle, used software licences can be sold freely.


2. What is the legal situation regarding the saleability of used software in the EU and Switzerland?

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Used software can be sold freely in the European Union. This also applies to Switzerland. Art. 12 II of the Swiss Copyright and Related Rights Act (URG; Schweizer Bundesgesetzes zum Urheberrecht und verwandten Schutzrechten) stipulates that the author's consent to the initial sale of software also constitutes consent to the resale of the used software. The Cantonal Court of Zug issued a similar ruling against the software company Adobe on May 4, 2011 (Cantonal Court, ref. ES 2012, 822). This interpretation of the law is also undisputed in legal doctrine. As an example, Prof. Dr Cyrill Rigamonti of the University of Bern explains in a journal article that trading used software is compatible with Swiss copyright law. (GRUR Int. 2009,14ff.)


3. What is the object of purchase when obtaining a used software license?

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The object of purchase is the right to use the software. Legally, it is a matter of purchase of rights.


4. What about the rights to support and update services when buying used software licences?

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In this case, there is no difference compared to the initial purchase. The buyer of used software licences is also entitled to all services in connection with the software.


5. When buying a used software licence, is it necessary to provide complete proof of the chain of ownership all the way back to the originator?

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No, no proof is required. The freedom to trade these licences after the initial sale makes subsequent sales possible without proof. Nevertheless, reputable sellers like us show the corresponding supply chain in its entirety. The reason for this is that rights purchases are only effective if the corresponding rights sold actually exist. When buying from us, you will not experience any "nasty" surprises, but will instead acquire valid existing rights to the used software licences along with a proven supply chain.


6. What is the legal situation regarding so-called volume agreements? May individual parts of these contracts be sold separately?

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Yes, it is legally permissible to resell parts of, for example, Microsoft volume license agreements used and individually. The prevailing legal opinion does not see any legal problems in this. The Munich Regional Court ruled on April 4, 2008 (Case No. 30 O 8684/07) that no further approval by Microsoft was required for the resale of individual used Microsoft software licenses under a volume license agreement. The district court legally recognized the parts of a volume license with a master CD as genuine individual licenses, and not only as reproduction rights, as Microsoft had presented it. Thus the judgement of the Munich Regional Court is in line with a judgement of the Hamburg Regional Court, which had already declared the sale of used software licenses from volume agreements lawful in 2006 (LG Hamburg Az. 315 O 343/06). The starting point for this decision is the time of copyright exhaustion, which the LG Hamburg considers to have already occurred with the first sale of the volume license. It is also decisive that Microsoft is not able to waive this copyright exhaustion as mandatory law through corresponding contractual conditions. However, the European Court of Justice has issued a ban on the splitting up of volume licenses for volume licenses of Oracle.


7. Is it mandatory to register a used software license with the manufacturer?

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No, there is no legal obligation to do so. Should any provisions to the contrary be specified by the seller or manufacturer, these shall be deemed void due to the exhaustion of the right of disposal under copyright law and shall not have any binding legal effect.


8. Does the originator/manufacturer have to give his explicit consent to the resale of used software licenses?

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No, no additional consent to resale is required. Upon the original sale, the author's power of disposal over the software is exhausted, so that they may not impose any further conditions for resale. Corresponding contractual conditions, for example in the author's general terms and conditions (GTC), are legally void and have no legal effect.

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