Used software

from Wikipedia, the free encyclopedia

As used software is software called, which is conferred by the manufacturer or seller of right of use (or approval ) is already extinct.

In addition to computer programs , the term software also includes data files . The term used software therefore initially not only stands for used computer programs, but also for used data such as e-books or music, photo and film files. However, case law differentiates between computer programs and data files. The following describes the legal situation with regard to computer programs, and the term software here explicitly means programs .

Excess software arises on the one hand as part of bankruptcies , restructuring and job cuts, but also through system changes, the introduction of new software, etc. It can also be the aim of the selling company to sell surpluses from volume license packages. In addition to direct sales between companies, there are specialized dealers who, after buying it, offer this software to interested companies for sale. Companies are interested in used software because it is usually much cheaper than "new" software or because software manufacturers no longer offer the desired but outdated versions. Second-hand software trading also takes place at and between private individuals. Resale is often prohibited in software contracts, both towards consumers and entrepreneurs.

Situation in Germany

This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

Legal position

There is a dispute about the extent to which the resale or transfer of the right of use is permitted. There are already differences of opinion as to whether the author's consent is required at all (or whether Section 34 (1) UrhG regarding software [analogous] is to be applied). Legal experts (such as Prof. Sosnitza, Hoeren , Dr. Grützmacher and others) sometimes assume that this is not necessary. If such consent should be required, a manufacturer may at least not refuse it against good faith . Another central role in the legal discussion is the question of whether (and to what extent) software or the associated right of distribution is also exhausted through digital distribution and volume licenses. In addition to the general terms and conditions and copyright discussion, resale bans on which many software license agreements are based are being questioned under competition law.

The Federal Court of Justice decided in a landmark judgment in 2000 that the resale of data carrier-based software cannot be restricted by the manufacturers via license conditions. The so-called exhaustion principle therefore also applies to OEM licenses, so that trading in OEM software without compliance with the OEM conditions is generally considered to be legally effective. Nevertheless, this does not mean that the exact effects of the OEM judgment will be unanimously assessed on the part of legal theory.

The emergence of used software trading in recent years has meant that several courts have recently decided on such issues. One case was finally decided in April 2008 (LG Munich I) in favor of a fundamental right of sale. However, as the Munich Higher Regional Court decided on July 3, 2008, the transfer of usage rights can only take place with the consent of the author. According to Section 34 (1) UrhG, the author is again only allowed to refuse this consent in exceptional cases (not contrary to good faith, thus not without good cause, among other things) (refusing but district court Mannheim in a judgment of December 22, 2009 - Az. 2 O 37/09). It is now clear that the Federal Court of Justice will decide on the matter (namely by allowing the appeal by decision of the BGH). On presentation of the BGH, the ECJ ruled in a ruling on July 3, 2012 that used software may be resold. The BGH ruled with judgment of July 17, 2013 - Az. I ZR 129/08 (UsedSoft II) that the exhaustion principle also applies to software purchased by download.

The principle of exhaustion

The trade in used software is based on the so-called exhaustion principle of the Copyright Act (UrhG) . According to § 69 c No. 3 sentence 2 UrhG, a manufacturer's right to distribute his product is exhausted the moment it is first placed on the market with his consent. Then the distribution right is exhausted with regard to the entire internal market of the European Union or European Economic Community (Community-wide exhaustion).

Initially, the distribution right lies with the manufacturer. The granting of this right is intended to ensure that the author receives appropriate consideration for his added value through the sale of his product. However, once this right has been exercised, it has been exhausted. Thereafter, the workpiece in question is free for further distribution. And explicitly “regardless of a content restriction of the granted right of use”, as stated in the guiding principle of the BGH judgment of July 6, 2000. The exhaustion principle of copyright applies both in Germany and in the entire territory of the European Union and also exists in a related manner in Switzerland . However, this does not limit the rental right.

Judgments

BGH judgment of July 6, 2000

In the judgment of July 6, 2000, the Federal Court of Justice (BGH) ruled that the exhaustion principle cannot be overridden by the manufacturer's license provisions (Az. I ZR 244/97 - OEM decision - judgment discussion in GRUR 2001, 153). At that time, Microsoft took legal action against the resale of so-called OEM software , which was contractually bound to new hardware when it was sold , but which was still sold in isolation by the middleman. The lawsuit was dismissed. In its ruling, the BGH stated that “further distribution is free due to the exhaustion of the copyright distribution right”. With the first sale, the entitled person would therefore give up "control over the work copy". The workpiece would then be “free for any further distribution”. According to the Federal Court of Justice, this approval is not only in the interests of the recycler, but would also benefit the general public. The reasoning for the judgment goes on to say: “If the right holder, if he has sold the workpiece or given his consent to the sale, could intervene in the further sale of the workpiece, prohibit it or make it dependent on conditions, the free movement of goods would be unbearable Way disabled. "

Judgment of the LG Hamburg from June 29, 2006

The Hamburg Regional Court ruled on June 29, 2006 (315 O 343/06 - judgment discussion in ZUM 2007, 159) that individual Microsoft licenses from volume license agreements may also be resold used. The court confirmed that the exhaustion principle applies to every single license under a volume license agreement. The ruling states: “The sale or alienation of individual Microsoft software licenses that were previously made within the scope of volume license agreements such as B. Select contracts have been made is also possible without the consent of Microsoft. ”Provisions within the license agreements that are intended to restrict the resale of software are therefore ineffective, as exhaustion is a“ mandatory right ”that cannot be contractually canceled. In response to the plaintiff's argument that a split of volume licenses was not possible due to the more favorable conditions granted, the court replied: “Microsoft's interest in remuneration (is) not to be taken into account. For the question of the occurrence of a copyright exhaustion (this is) much more completely irrelevant. "

Judgment of the Munich Higher Regional Court of August 3, 2006

The OLG Munich confirmed on August 3, 2006, a preliminary injunction , the trafficking of used Oracle software is not permitted if it was acquired by online transfer, d. H. without original data carrier (CD, DVD, tape etc.) from the manufacturer (Az. 6 U 1818/06 - judgment discussion in MMR 2006, 748). While the court did not question the fundamental legality of the trade in used software, it followed Oracle's argument in the present case. Accordingly, the exhaustion effect would not occur in the case of licenses transferred online, since no copy was brought into trade. Several copyright experts (Prof. Sosnitza, Prof. Hoeren, Dr. Grützmacher and others) criticized this literal interpretation of the principle of exhaustion (or similar application expansion that was not carried out) as being unrealistic. Oracle customers who want to secure the right to resell their software can also insist on the delivery of an original data carrier when purchasing or request it at a later date. Then the resale is also legal according to this legal opinion.

Judgment of the Munich Regional Court of April 4, 2008

The District Court of Munich I decided on April 4, 2008 (Az. 30 O 8684/07 - judgment discussion in MMR 2008, 563) that individual software licenses from Microsoft volume license agreements may also be resold “used” (legally binding). It ruled ... "that the sale or alienation of individual Microsoft software licenses, which had previously been given in the context of volume license agreements, is in principle effectively possible even without the consent of Microsoft." That means: Even if Microsoft has several usage rights in sold in a volume package (e.g. with only one master CD), its distribution right is still exhausted with regard to each individual license. This means that they can also be resold individually, and not just in the form of the original package. Microsoft's legal opinion, according to which the buyer of a volume license only acquires a right of reproduction, but no individual licenses, was rejected by the court. The Munich Regional Court also expressly refers to the judgment of the Hamburg Regional Court, which had already declared the resale of individual Microsoft licenses from volume licensing agreements to be permissible on June 29, 2006 (Az. 315 O 343/06 - judgment discussion in ZUM 2007, 159), and joined this legal opinion.

Judgment of the Munich Higher Regional Court of July 3, 2008

The Munich Higher Regional Court ruled on July 3, 2008 (Az. 6 U 2759/07 - judgment meeting in MMR 2008, 601) that a resale of Oracle licenses was illegal because the author's consent had not been given. This applies even to the sale of Oracle single-user licenses with delivery of an original data carrier. However, this judgment applies only to Oracle software, not to software from Microsoft or other manufacturers. The Federal Court of Justice has approved the appeal against this judgment, so it will review the decision. On February 3, 2011, the Federal Court of Justice referred three key questions on the matter to the Court of Justice of the European Union ECJ with ruling Az. I ZR 129/08 - on the admissibility of the sale of "used" software licenses.

Judgment of the LG Mannheim from December 22, 2009

The Mannheim Regional Court ruled on December 22nd, 2009 that the software provider did not have to agree to a transfer of licenses (from a customer's bankruptcy estate) based on Section 34 (1) sentence 2 UrhG or for reasons of antitrust law. This decision was confirmed by the Higher Regional Court of Karlsruhe in summer 2011 with express reference to the Federal Court of Justice .

Judgment of the Federal Court of Justice of February 11, 2010

The Federal Court of Justice ruled on February 11, 2010 (Az. I ZR 178/08 - judgment discussion in GRUR 2010, 822) that the mandatory registration of software (here: Half Life 2) after installation via a user account on the software manufacturer's internet server does not affect the copyright The principle of exhaustion of the distribution right is not violated, even if the license terms of the software prohibit the transfer of the user account to third parties. This also applies if the data carrier with the software can practically no longer be resold by the first buyer.

Judgment of the BGH of October 6, 2011

The Federal Court of Justice ruled on October 6, 2011 (Az. I ZR 6/10 - Certificate of Authenticity) that the sale of backup CDs with certificates of authenticity that had been replaced by computers constituted a trademark infringement because it conveyed the wrong statement to the consumer that the software was placed on the market with the consent of the trademark owner and that the owner is responsible for its authenticity. This judgment only relates to the data carrier and the certificate of authenticity that do not come from the same package, i.e. were not sold together. According to the judgment, the principle of exhaustion does not preclude this.

Judgment of the Federal Court of Justice of July 17, 2013

As expected, the BGH confirmed the judgment of the European Court of Justice on July 3, 2012. The fundamental admissibility of the sale of used software licenses can no longer be shaken. At the end of 2012, the Frankfurt Higher Regional Court changed its case law as a result of the ECJ ruling of July 3, 2012 and decided that the split of volume licenses is also permitted in the used software trade (Az. 11 U 68/11 of December 18, 2012). The full judgment can be found under file number I ZR 129/08.

Judgment of the BGH on December 11, 2014

In its judgment of December 11, 2014 (I ZR 8/13), the Federal Court of Justice dealt with the question of whether, if 40 licenses of the “Adobe Creative Suite 4 Web Premium” software package were purchased, 2 of these would later be sold separately “used” allowed to. This involved 40 separate licenses ("rights of use"), which, in the opinion of the BGH, could subsequently also be transferred independently. The BGH judgment cannot be interpreted as a general agreement that software acquired with a volume license could be split up and transferred individually. The term “volume license” is not defined by law and is used very differently by the various software manufacturers in terms of law and content. Microsoft, for example, understands volume licenses not only to be a collection of individual licenses, but also grants client-server usage rights for Office volume licenses, i.e. exactly those rights on which the Federal Court of Justice stated in its judgment of July 17, 2013 that the splitting up of which is not readily permissible. The full judgment can be found under file number I ZR 8/13.

Judgment of the Düsseldorf Higher Regional Court of July 12, 2016

The Düsseldorf Higher Regional Court stated in its judgment of July 12th, 2016 (20 U 117/15) that the expression of opinion "Be careful when buying split volume licenses" by the license advisor USC is legal. The OLG pointed out: “The“ Microsoft volume license ”is, in any case, if it is installed on a server for shared use by all authorized licensees, not without further ado with the so-called“ volume license ”consisting of a bundle of Single-user licenses, as they were the basis of the cases decided by the Federal Court of Justice and Higher Regional Court in Frankfurt, to be equated with an Adobe software. ”The complete judgment can be found under file number 20 U 117/15 (grounds for judgment 12 O 76/15, page 11).

Situation in Switzerland

Judgment of the Cantonal Court of Zug

The application of Adobe Inc. to prohibit the resale of Adobe software, UsedSoft was rejected (Az. ES 2010 822). The court justifies this with the fact that the rights holder, here Adobe, cannot prohibit a resale under copyright law.

Situation in the European Union

Judgment of the Court of Justice of the European Union of 3 July 2012

The ECJ ruled that used software may be resold, regardless of how it was acquired, this also applies to software purchased through download. If software acquired by downloading has to be updated via the Internet, the buyer of the used software also has this right to update. According to the ECJ, the first selling buyer is not allowed to keep a copy of the software. The exclusive distribution right of the software copyright holder is exhausted with respect to the sold copy. A license agreement that prohibits such a later sale is ineffective.

At the same time, the ECJ issued a ban on splitting Oracle licenses. Reason: Oracle concurrent licenses are stored with a copy on a server, and the software customer acquires a certain number of access rights. Since this is a single license, it cannot be split up (ie, “split up”). The ECJ took this into account. However, the judgment does not relate to so-called "volume licenses". This is a certain amount of individual licenses that are sold in a package for marketing and sales reasons. The splitting up of these packages and their partial resale is not affected by the ECJ ruling, as this does not involve splitting individual licenses. The regional courts of Munich (file number 30 O 8684/07) and Hamburg (315 O 343/06) have already ruled accordingly in Germany.

swell

literature

Individual evidence

  1. ↑ Guide: Sustainability by buying back used software. In: WindowsArea.de. September 1, 2019, accessed on September 3, 2019 (German).
  2. ^ LG Mannheim, judgment of December 22, 2009 - 2 O 37/09
  3. ^ BGH, decision of February 3, 2011 - I ZR 129/08 Order for reference to the ECJ on the interpretation of the Computer Program Directive
  4. ↑ Michael König: Trading in used software: Exhaustion principle 2012
  5. ↑ Press release No. 157/11 - Microsoft wins legal dispute over Windows software with authenticity certificates . Website of the BGH.
  6. ↑ judgment: OLG Dusseldorf, 20 U 117/15, 12.7.2016: . Judgment: OLG.
  7. ↑ Press release on the OLG judgment, 20 U 117/15, 12.7.2016: . Press release on the OLG judgment.
  8. ↑ http://www.zdnet.de/41553088/
  9. ↑ ECJ on Oracle vs. UsedSoft: Used software can be sold - SPIEGEL ONLINE . Spiegel Online website. Retrieved July 3, 2012.
  10. ↑ Press release 94/12 on the grounds for the judgment on the case C 128/11 . ECJ website (.pdf document; 48 kB). Retrieved July 3, 2012.
  11. ↑ Full text judgment of the European Court of Justice, judgment of July 3, 2012 - C 128/11 -
  12. ^ Voices on the ECJ decision Oracle versus Usedsoft. Used software: How retail and the software industry react . Computer Reseller News website crn.de.Retrieved July 25, 2012.