Foire aux questions

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Un logiciel usagé est un logiciel qui a été mis en circulation avec l'accord du vendeur de logiciel, c'est-à-dire que le vendeur a directement distribué le logiciel ou que le logiciel a été vendu par un détaillant de logiciels.

Yes. In July 2012, the European Court of Justice has made a principle decision, declaring the trade with used software as inherently legal.

According to the grounds for the judgement, „the exhaustion doctrine is valid from the first sale of a software product“. The exhaustion pertains to every single licence, making the splitting of volume licences possible, as confirmed by the Federal Court of Justice of Germany (Federal Court of Justice of Germany, 12/11/2014, file no. I ZR 8/13). The decision also applies to licences which have been transferred online. Buyers of used software are even entitled to download the software product again from the software vendor’s site. The ECJ justifies this decision as follows: „Moreover, the exhaustion of distribution rights applies to the creator’s or legal owner’s programme copy, too in latest and improved form“ (ECJ 07/03/2012, file no. C-128/11).

On July 17, 2013, the Federal Court of Justice of Germany, implemented the decision by the ECJ on a national level. In Germany, it is legal to remarket used software licences and to transfer all rights of usage for the software to the subsequent purchaser. Physical and noncorporeal program copies are treated equally (Federal Court of Justice of Germany, 07/17/2013, file no. I ZR 129/08).

What about volume licences, in particular?

Even the sale of volume licences is legally unproblematic, since „the ECJ’s decision also applies to volume licences and the process of splitting them into single licences.“ That was confirmed by the Higher Regional Court in Frankfurt in December 2012 in a lawsuit between Adobe and a used software dealer (Higher Regional Court Frankfurt on the Main, 12/18/2012, file no. 11 U 68/11). This decision was confirmed by the Federal Court of Justice of Germany in December 2014 (Federal Court of Justice of Germany, 12/11/2014, file no. I ZR 8/13).

If a company wants to use a programme on several computers, software vendors offer so-called volume licence agreements. With a volume licence agreement, a company purchases a specific quantity of licences for products from the software vendor. When purchasing great quantities of licences within the scope of a volume licence agreement, software vendors often hand out discounts.

Furthermore, licences from volume agreements contain additional rights of usage. The re-imaging right, for instance, allows for central distribution of the software. The distribution can be managed from one server, instead of installing the product manually on every single computer. This way the company saves time and money whilst licence management is facilitated.

As opposed to individual licences, data media or user manuals are not included in the delivery of volume licences. Instead, the licences can be installed via download.

Licences from volume licence agreements may also be split up and resold individually.

Software vendors must not differentiate between regular and used software: Used software is to be treated exactly like new software. A product version which includes the right to be updated retains that right even when the software is resold. According to the legal framework, software vendors are obliged to make free patches for error removal available to subsequent buyers, too.