Can software licences be sold freely?
Yes, look also here.
What do I get with the purchase of used software licences?
Buying used software generally is an acquisition of rights, by which the purchaser acquires the right to use a computer program.
Am I also entitled to support and updates with used software?
All the manufacturer's after-sales services are also available to you even when using used licenses. Further information on updates & maintenance is available here.
Do I need to prove an unbroken chain of previous owners back to the developer when acquiring used software?
Generally the purchaser of used licences doesn't need to meet this demand. Once sold by the developer, a software licence is freely tradeable and negotiable, without having to prove any evidence.
However, the proof of the unbroken licence chain back to the developer is important as the purchase of used software licences usually is a so-called acquisition of rights. Yet, the right can only be sold if it exists. To prove this, the licence chain back to the developer is the perfect evidence. usedSoft is in possession of all the required original documents.
Can software licences also be resold if they belong to a volume contract?
In terms of copyright, these kinds of licences are also free tradeable, as the exhaustion rule can be applied to every single licence. The legitimacy of a contract clause determining that the licences can only be reassigned as a total, is seriously being doubted at least by experts. According to the German Civil Code (BGB), a purchaser has to be enabled to dispose freely of his property, and contractual restrictions as mentioned before are incompatible with this principle.
Munich Regional Court (Landgericht) ruled that "the sale and/or the disposal of individual Microsoft software licenses previously issued as part of volume license agreements, is fundamentally possible even without the approval of Microsoft." In practice, this means the following: If Microsoft sells several rights of use in a volume package, for instance with only one master CD, its right of distribution is nevertheless exhausted in relation to every individual license. These licenses may correspondingly also be resold individually, and not only in the form of the original package. With this judgement, the Court rejected the legal conception on the part of Microsoft, according to which the purchaser of a volume license does not acquire individual licenses but only a right of duplication.
Munich Regional Court (Landgericht) explicitly refers to the judgement by the Hamburg Regional Court, which in June 2006 had already declared the re-sale of individual Microsoft licenses from volume licensing contracts to be admissible (File reference 315 O 343/06). In this ruling, the Regional Court of Hamburg decreed, inter alia, that Microsoft's argument was a clear rejection that the splitting-up of volume licenses would not be possible owing to the more favourable conditions granted for them. This is, according to the ruling, " completely irrelevant...to the question of applying copyright exhaustion." In conclusion the Hamburg Court emphasised that the provisions in Microsoft's licensing conditions that restricted the resale were ineffective: the exhaustion relates to "mandatory law that cannot be contractually waived.
The prohibited splitting-up of licenses raised in the ECJ's judgement dated 3 July 2012 refers only to the Oracle licenses dealt with there.
This was also confirmed by the Frankfurt Higher Regional Court's judgement on 18.12.2012 (File reference 11 U 68/11).
Do I always have to register my second-hand software at the developer?
There is no general registration duty with the software developer. Licence regulations adverse to that are basically ineffective, as a contractually determined mandatory registration is neither compatible with the exhaustion rule nor with the owner's freedom of command.
Does the software developer have to approve of the sale of used licences?
Generally, licence resale does not require the approval of the developer, as he is generally not entitled to exert such kind of influence on a resale process. Therefore all clauses implying his approval are always ineffective. Again the reason is that a contractually imposed reservation of approval is neither compatible with the exhaustion rule nor with the owner's freedom of command."
Which countries allow the resale of used software licences?
Used software licences may be sold throughout the euro zone.
What does the Swiss law say about used software trade?
"Used software can also be bought and sold in Switzerland in principle, providing the software has been sold by the originator with his consent." This is stated in Art. 12, Clause 2 of the Swiss Federal Law on Copyright and Related Protected Rights (URG): "Has an originator sold or agreed to the sale ( ... ) of a computer program, this may be used or resold."
Dr. Cyril Rigamonti, Professor of Law at the University of Berne, then continues to confirm clearly in an article that the resale of software in Switzerland is lawful: "The trade in used software (is ... ) permitted under Swiss copyright law."
Furthermore the manufacturer's authorisation is definitively provided for with the first sale by the sale per se.
What is the legal situation in Austria?
Trade in used software is fundamentally permitted under Austrian law, because the principle of exhaustion is enshrined in Austrian law. The right of distribution of a software manufacturer is exhausted, as soon as the latter sells this product for the first time and it is purchased by the initial purchaser. This principle was expressly extended to include software within the European Union in 1993 on the basis of an EU directive and applies in all EU member states. This was also confirmed by the ECJ judgement.