Via Huťko´s IT & IP legal blog comes this story about a freshly referred case from the First Senate of the German Bundesgerichtshof in Oracle v usedSoft (I ZR 129/08). This reference deals with the resale of downloaded software and the ECJ has been asked to clarify the legal position of software which has been sold not physically but online. There is no attached number or any mention on Curia's website so far.
According to an English-language press release from usedSoft,
"...the ECJ will now decide, presumably within one or two years, whether software which was transmitted to the buyer online may also be traded as used. ...
However, the future decision by the ECJ will have little impact on the trade with used software because the legal circumstances regarding trade with “used” software are largely clarified. As the BGH declared in its press release today: “According to Art. 5(1) of directive 2009/24/EC [on the legal protection of computer programs], the reproduction of a computer program does not, in the absence of specific contractual provisions, require the authorisation of the rightholder ”
Sabine Leutheusser-Schnarrenberger, German Federal Minister of Justice, also confirmed in September 2010 that trade with “used” software is essentially legal. Legal uncertainty exists only with respect to software which has been sold online. Courts in Munich and Hamburg have handed down similar decisions in recent years. The RC Munich, for example, ruled in April 2008 “that the sale or vending of single Microsoft software licences previously granted within the framework of volume licence agreements is fundamentally possible as an effective transaction even without the consent of Microsoft.” ".The 1709 Blog will watch future developments with interest.