Used Software: Resale legal
At the end of 2014, the Federal Supreme Court (BGH) ruled that the splitting of volume licenses is legally permissible. The ruling of the highest German civil court has finally eliminated the uncertainty that had prevailed until then with regard to the sale of used software. The subject of the lawsuit was a legal dispute between the software company Adobe and usedSoft, a well-known software vendor. Already in 2012, the Higher Regional Court in Frankfurt am Main was dealing with this issue and liberalized the trade with used software as far as possible with its judgement (Case No. 11 U 68/11).
A central component of the court ruling was the decision that volume licenses acquired through volume license agreements may also be legally resold as individual licenses. The software company Adobe appealed against the decision and brought the case before the BGH. The decision of the BGH finally clarified that no software manufacturer may take action against the resale of its applications.
Legal situation regarding used software in Europe
The reason for this court hearing, which ended on July 3, 2012 with a verdict, was once again a complaint by Microsoft. It was directed against two dealers from Latvia who had sold used Office licenses. The competent court in her home country appealed to the European Court of Justice to create a uniform basis for trade in used software in Europe. The judges' reasoning almost provides guidance on the legal sale and purchase of "used software" and created the desired legal certainty.
Buying used software legally
The most important statement of the judgement first of all: The sale of used software is permitted. However, there are certain prerequisites that must be fulfilled. On closer inspection, these are very conclusive and indispensable for a reasonable trade.
In fact, there are some differences between a computer program and a Benz or Volkswagen. If you have sold your old car, you are guaranteed not to have kept a copy of it in your yard. This is not impossible with software. Both older programs distributed on CD and new ones, for which a backup copy is even recommended as a download, could theoretically be duplicated. A sale of the software must therefore inevitably involve the distribution of all original data carriers. At the same time, all copies that the seller may have must be destroyed.
The easiest way to sell software is to have an original data carrier (CD, DVD). This is simply passed on to the buyer along with all associated documents. The case is more complicated if there is only one backup copy. Basically a trade is also possible under this condition. In this case, however, the copyright holder must agree to the transaction. As a rule, this is the manufacturer. It is also important that the judges have declared restrictions in the licence agreements which prohibit resale to be invalid. For the Swiss area, there is a similar ruling by the Cantonal Court of Zug (Case No. ES 2010 822).