Within the European Union, the resale of used software licences is legal, as Judgment of the European Court of Justice of 3 July 2012 confirmed in UsedSoft GmbH v Oracle International Corp (C-128/11).
The decision is based on the "exhaustion of rights principle", according to which the software producer's distribution rights are exhausted once the software has been placed on the market for the first time in the European Economic Area (EEA). This means that the original purchaser of the software has the right to resell the licence, regardless of whether the software was obtained on a physical medium or by download.
However, the resale of used software licences is subject to certain conditions:
- Original placing on the market: The software licence was put on the market in the EEA by or with the consent of the copyright owner.
- Perpetual licence: The license must be perpetual, i.e. it must grant the right to use the software for an indefinite period of time.
- Discontinuation of the use of a screen: The original purchaser must render their copy unusable, for example by deleting it from their system before resale, ensuring that the software is only used by one user at a time.
Compliance with these conditions ensures that the resale of used software licences is legal and in line with EU legal requirements.
The types of software licenses that can be resold are:
- Boxed (Retail or FPP) licences: This software is sold on a physical medium, such as a CD or DVD, and is usually licensed to a single user.
- OEM (Original Equipment Manufacturer) licences: These licences are originally sold by hardware manufacturers and are often found pre-installed on new computers. Although they are traditionally tied to the specific hardware, the European Court of Justice has ruled that OEM licences can be resold, provided that the original user discontinues his own use.
- Volume Licensing (Volume Licensing): These licences are usually purchased by large companies and organisations and entitle you to install multiple copies. The European Court of Justice has ruled that volume licences can be resold individually if the original purchaser has ceased to use them.
It is important to note that for the resale of a software licence to be legal, the original user must have discontinued use of all copies and the licence must be perpetual. If these conditions are met, the above types of licences can be legally resold within the EU.
