In our FAQ on used software you will find answers to the most important questions. Is the purchase legal? How can I buy used software? How does licensing work? Do I get updates for used software?
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Yes, read more details here.
Buying used software generally is an acquisition of rights, by which the purchaser acquires the right to use a computer program.
Keys (licence keys) and licences are not the same thing. Only a licence entitles the buyer to use a computer program. Whereas a key does not: the sole purpose of a so-called licence key is to be able to install and activate the licenced program. A key is therefore not the authorisation (right) to use the program. The program may not be used without the appropriate licence.
usedSoft operates exclusively in the B2B sector and sells licences purely for commercial purposes. Our customers include companies, resellers and public authorities.
For every order placed, our customers receive a delivery note and an invoice. These documents are sufficient to be able to prove the legitimate acquisition of the licences. Furthermore, where necessary we provide licence keys to activate the respective software in a separate supplement. An exception to this are CALs since no key is needed to activate them.
Yes. Whether new or used: every piece of software is treated in the same way in terms of updates and maintenance. All the manufacturer’s after-sales services are also available to you even when using used licences. A version entitled to an update also retains this status as used software.
Serious legal concerns were cited, were a manufacturer to refuse the maintenance of software it has produced: an abuse like this of a dominant market position would be a clear violation of European cartel law. For this reason alone, a manufacturer has not yet refused maintenance or updates.
A software user has no general obligation to demonstrate his justification to use the software in response to the manufacturer’s unsubstantiated request. Furthermore, the user is not obliged per se to undergo an audit. No legal obligation emerges from the relevant rulings of the European Court of Justice (EJG) and the German Supreme Court (BGH), which leave no room for doubt in confirming the lawfulness of the use of used software.
In terms of copyright, these kinds of licences are also free treadable, 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 licences previously issued as part of volume licence 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 licence. These licences 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 licence does not acquire individual licences 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 licences 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 licences 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 licences raised in the ECJ’s judgement dated 3 July 2012 refers only to the Oracle licences 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).
In order for you to understand precisely how to purchase a licence from us on a step-by-step basis, the following steps describe the individual stages involved:
When purchasing in the web shop:
Otherwise:
There is generally no need to register with the software manufacturer for software sold by us. 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.
No. 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.
Used software licences may be sold throughout the euro zone.
“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.
