The Federal Court of Germany has rejected Adobe’s appeal and has hereby confirmed the Euroepan Court’s verdict: used volume licences may be split and resold seperately.
1. How did this verdict come about?
In 2012, a verdict of a Frankfurt court (Az. 11 U 68/11) already liberated the trade of used software based on the European Court’s verdict. Software producer Adobe’s appeal against this verdict was fully rejected by the German Federal Court.
2. Licences from from volume contracts may be resold individually
There is no prohibition for licences that have been purchased within a volume contract (– except Client-Server licences).
3. The verdict also applies for reduced software programmes such as educational licences
Even used educational licences may be resold.
4. Software purchased online may be traded second-hand even if the software producer excludes this from its licence contract.
In July 2012, the European Court already decided that software producers’ distribution rights expire as soon as the software is sold for the first time, regardless what the form of distribution is. Software producer’s cannot defy a later re-sale of the licence even if the contract should prohibit this.
Owners may resell the software. A second buyer is allowed to even purchase software updates from the producer.
5. Things, to consider when buying used software
The European Court has explicitly stated, which legal preliminaries have to be complied when selling used software.
The copy of the programme has been distributed in the EU or Switzerland with the producer’s approval.
It is a fully purchased not rented copy.
The first buyer has to delete the remaining samples before selling the copy to a new buyer.
The user must be able to prove via the chain of rights that he/she has the right to use this licence.