Used Software: Reselling is legal
At the end of 2014, the Federal Court of Justice (BGH) ruled that the splitting of volume licences is legally permissible. This ruling from Germany's highest civil court finally removed the uncertainty surrounding the sale of used software that had existed up to that point. The case concerned a legal dispute between the software company Adobe and usedSoft, a well-known software seller. The Higher Regional Court in Frankfurt am Main had already addressed the issue in 2012 and liberalised the trade in used software to the greatest extent possible with its ruling (ref. 11 U 68/11).
The central element of the court ruling was the decision that volume licences acquired via volume licensing agreements may also be legally resold as individual licences. The software company Adobe appealed against the decision at the time and brought the case before the Federal Court of Justice. The Federal Court of Justice's ruling finally made it absolutely clear that no software manufacturer may oppose the resale of its applications.
Legal situation regarding used software in Europe
The reason for this court hearing, which ended with a ruling on July 3, 2012, was once again a lawsuit filed by Microsoft. It was filed against two vendors from Latvia who had sold used office licences. The competent court in their home country referred the matter to the European Court of Justice in order to create a unified basis for the trade in used software in Europe. The reasons given by the judges for the judgement practically serve as a guide to the legal sale and purchase of "used software" and provided the desired legal certainty.
Buying used software legally
The most important conclusion of the judgement first: The sale of used software is allowed. However, there are certain requirements that must be met. Upon closer inspection, these are very conclusive and essential for sensible commerce.
Indeed, there are several differences between a computer programme and a Benz or a Volkswagen. If someone sells their old car, you can guarantee that they will not have kept a copy of it in their yard. In the case of software, this is not necessarily impossible. Both older programmes distributed on CDs and new ones, where a downloaded backup copy is even recommended, could theoretically be duplicated. Any sale of such software must therefore necessarily be accompanied by a transfer of all original data carriers. Likewise, all copies that the seller may have must be destroyed.
The easiest way to sell software is therefore to have the original data carrier (CD, DVD). This is simply passed on to the buyer along with all the associated documents. The situation is more complicated if there is only a backup copy. In principle, it is also possible to trade if this is the case. However, the copyright holder then has to agree to the transaction. This is usually the manufacturer. It is also important to note that the courts have ruled that restrictions in licensing agreements prohibiting resale are legally void. For the territory of Switzerland, there is a similar ruling by the Cantonal Court of Zug (ref. ES 2010 822).
S2 Software: Download CONFORMITY CERTIFICATE here: s2_Konformittszertifikat_Final (PDF)