Clear legal foundation
Anyone considering buying or selling used software licences can rest assured. It is certainly legal to resell software licenses that were purchased at any point in time.
Legal justification
The legal justification for this lies in the so-called principle of exhaustion. This leads to the fact that distribution rights as per copyright of a copy of an asset protected by copyright are exhausted once it has been placed into circulation rightfully.
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 their customer – whether on a material medium or as a download – and at the same time concludes, in return for payment of a fee, a license 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 their 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 license agreement prohibits a subsequent transfer.
Bundesgerichtshof – judgement issued on 11 December 2014 (Case I ZR 8/1)
In general, it can no longer be disputed that selling relicensed software, even taken from volume licenses, is acceptable.
Bundesgerichtshof (Germany’s Federal Court of Justice) – judgement issued on 17 July 2013
Conclusion
In general, it can no longer be disputed that selling used software, even taken from volume licenses, is acceptable.
