German Court asks ECJ to Step in

by Katy Murcutt - Paralegal

25 February 2011, filed under Copyright

The European Court of Justice has been asked by the German Federal Court to step in during a high profile software case. The German Court has requested that the ECJ specify whether software licences can be resold if they are second hand.

The software licences in question apply to second hand versions of already downloaded business software.

Software giants Oracle bought a case against company usedSoft, who sold pre-used licences for software originally sold by Oracle. Users of the second hand licences download the software from Oracle.

The First Civil Division of the German Federal Court has requested for the ECJ to determine whether the selling of the used licence is illegal, as each licence sold by Oracle states that the licence is not transferable, which would imply it is not suitable for resale. Oracle has subsequently claimed that use of the licences by usedSoft is copyright infringement.

The German Court will rely on the decision of the ECJ to ascertain whether or not the purchaser of the used licence is a lawful acquirer of that software or not and therefore acting in accordance with current German and respective EU copyright law.

In todays market place there are many firms selling used software licences. However many of thee firms operate legally by ensuring that the used software sold is permitted to be transferred and subsequently resold legitimately.

UsedSoft have agreed to the referral to the ECJ for a final ruling on the resale of downloadable software. The implications of the ECJs decisions may mean many European firms are acting illegitimately and may lead to a further review of the operations of those companies.

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