With its third UsedSoft ruling, the BGH has further liberalized the trade in used software. Accordingly, the splitting of volume licenses in the context of resale is also permissible. In addition, the highest German civil court ruled that contractual restrictions on the user group are not binding for the purchaser in the event of a resale (BGH, judgment of 11.12.2014 - I ZR 8/13).
In this respect, the BGH fully confirms the decision of the Higher Regional Court of Frankfurt (see our blog at http://anwaltskanzlei-online.local/2013/06/14/softwarelizenzrecht-klassische-lizenzmodelle-geraten-ins-wanken/). For providers of proprietary software, traditional purchase licenses are therefore likely to become less attractive. Rental models and cloud-based solutions, on the other hand, are likely to be further strengthened by the decision.
The decision marks the provisional end of a series of legal disputes surrounding UsedSoft's business model. The Adobe and Oracle groups in particular had challenged its idea of reselling used software licenses in court for years and through all instances. The core of the dispute was always the question of whether restrictions could be placed on the resale of the software in the event of a transfer of unlimited usage rights. Citing their copyrights, the companies wanted to prevent resale as far as possible, but in any case wanted to exert far-reaching influence on the possibilities of use by the subsequent purchaser. The courts have clearly rejected this legal opinion.
First, the ECJ ruled that software distributed online can also be "sold" in the legal sense and that exhaustion therefore also applies to such program copies downloaded online. This applies if unlimited rights of use are granted to the program copy. In this case, the author can no longer prohibit the resale of the program copy.
The current BGH ruling goes even further. This dispute concerned the question of whether a volume license - which is cheaper in terms of price - may also be split up in the context of resale. The judges also affirmed this. They understood the term "volume license" to mean that it entitles the user to make several copies of the program with one license key and install them on several individual computers. In this case, according to the BGH, each individual program copy is exhausted and can be redistributed in isolation. The situation is different - and this is also clarified - in the case of server-client licenses, where a single copy of the program is installed on the server and can be accessed by a certain number of computers. In this case, no individual access rights may be sold.
The ruling contains another decisive point. The judges also ruled that any restrictions on the group of users - in the case in question, the licenses were offered for educational institutions - are not binding for the purchaser in the event of resale. In plain language: Even if the first purchaser acquires a particularly favorable license, e.g. for the education sector, he can also resell these rights of use to subsequent purchasers outside the education sector. From a copyright perspective, the restriction of the user group does not constitute a permissible description of the intended use of the computer program (Section 69d UrhG).
Despite some practical difficulties, particularly with regard to proving the deletion of the resold computer program by the first purchaser, the resale of software has now finally been given the highest court's blessing. It is therefore advisable for software providers to increasingly offer rental models and cloud services. This is because the problems of passing on to third parties do not arise in this context.
