Oracle cannot block the resale of its software in Europe



The decision of the Court of Justice of the European Union (CJEU) applies to the whole of the software industry operating within the EU, not just Oracle and UsedSoft, the German reseller that Oracle sued. It follows an opinion in April by CJEU advocate-general , Yves Bot, who also said that the same resale rights should apply to downloaded software that apply to software sold on CDs or DVDs.

"Where the copyright holder makes available to his customer a copy — tangible or intangible — and at the same time concludes, in return [for] 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. Such a transaction involves a transfer of the right of ownership of the copy," the CJEU said in a statement (PDF).

The door for the trade in used software has been pushed wide open throughout the European Union - UsedSoft


The court added that allowing different rules for downloadable software "would go beyond what is necessary to safeguard the specific subject-matter of the intellectual property concerned." However, Oracle disagreed.

"We think the Court of Justice of the European Union has missed a significant opportunity to send out a clear message about the value of innovation and intellectual property to the European economy and European businesses," the software giant said, while claiming that "unnecessary risks for users obtaining software through secondary channels who do not know for sure if the licences had been obtained legally by the first user need to be prevented".

Final judgement pending

Oracle has still not technically lost the case, as the final judgement will be up to the German court that asked the CJEU to help it out, but the CJEU's ruling is almost certain to form the basis of that final judgement.





However, the CJEU did place two limitations on the resale rights, both of which apply to what UsedSoft has been doing. In cases where the 'first acquirer' had bought a licence covering more users than needed, the court said they could not then divide the licence and "resell only part of it".

"Furthermore, the Court states that an original acquirer of a tangible or intangible copy of a computer program for which the copyright holder's right of distribution is exhausted must make the copy downloaded onto his own computer unusable at the time of resale," the CJEU added.

UsedSoft said the decision meant "perfect legal safety on the market", according to a statement quoted by Deutsche Welle.
