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For the EU and Germany, supreme court rulings have unequivocally confirmed this legal situation

European Court of Justice – judgement issued on 3 July 2012 (Case C-128/11)

Where the copyright holder makes a copy of a software product available to his customer – whether on a material medium or as a download – and at the same time concludes, in return for payment of a fee, a licence agreement granting the customer the right to use that copy for an unlimited period, that right holder sells the copy to the customer and thus exhausts his exclusive distribution right. This means that the copyright holder can no longer oppose the resale of this copy by the customer (first acquirer) if the customer makes his own copy unusable at the time of the resale. This even applies if the licence agreement prohibits a subsequent transfer.

Bundesgerichtshof – judgement issued on 11 December 2014 (Case I ZR 8/1)

The exhaustion of the distribution right for copies of a computer program applies regardless of whether the right holder agrees to the transfer of a certain number of physical data carriers, or whether he agrees to a corresponding number of copies being created by downloading one copy of the computer program and creating additional copies of this copy. This means that the splitting and individual resale of ‘volume licences’ by the right holder’s customer (first acquirer) is permissible, provided that he makes a corresponding number of copies in his possession unusable.

BBundesgerichtshof (Germany’s Federal Court of Justice) – judgement issued on 17 July 2013

For the resale of a copy of a program that has been downloaded from the website of the copyright holder, there is no requirement for the subsequent acquirer to receive a data carrier with the ‘exhausted’ copy of the computer program. It suffices if he downloads a copy of the program from the website of the copyright holder. Contractual provisions cannot revoke the right of the subsequent purchaser of the ‘exhausted’ copy of a computer program to use the program for its intended purpose. Nevertheless, the exhaustion of the right to distribute this copy can only be successfully invoked by this subsequent acquirer if the first acquirer has made his own copy unusable.

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