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Second-hand software?
The legal situation

Overview of the relevant court decisions concerning sale, purchase and use
of second-hand software licences within the European Union and Germany.

Clear legal situation

Anyone considering buying or selling second-hand software can rest assured. It is definitely legal to resell software licences that were purchased at any point in time.

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:

  • Court of Justice of the European Union
    Judgment of 03/07/2012
    (Case C-128/11)

    »Article 4(2) of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs must be interpreted as meaning that the right of distribution of a copy of a computer program is exhausted if the copyright holder who has authorised, even free of charge, the downloading of that copy from the internet onto a data carrier has also conferred, in return for payment of a fee intended to enable him to obtain a remuneration corresponding to the economic value of the copy of the work of which he is the proprietor, a right to use that copy for an unlimited period.

    [...] It makes no difference whether the copy of the computer program was made available to the customer by the right holder concerned by means of a download from the right holder’s website or by means of a material medium such as a CD-ROM or DVD.«

  • Federal Court of Justice, Germany
    Judgment of 17/07/2013
    (Case I ZR 129/08)

    »Reselling a computer program copy downloaded from the copyright holder's Internet site does not require the secondary acquirer receiving a material medium containing the "exhausted" copy of the said computer program. It is sufficient for him to download a copy of the computer program from the copyright holder's Internet site.

    The right of the secondary acquirer of the "exhausted" copy of the computer program to use it as intended cannot be precluded by contractual stipulations.

    However, said secondary acquirer can only successfully plead for the distribution right to the said copy to be exhausted if the first acquirer has made his copy unusable.«

  • Federal Court of Justice, Germany
    Judgment of 11/12/2014
    (Case I ZR 8/1)

    »Exhaustion of the distribution right to the computer program copies takes effect independently of whether the copyright holder gives his consent to sell a certain number of material media or to produce an equivalent number of copies by downloading a copy of said computer program and producing additional copies of this copy.

    In other words: It is acceptable for the copyright holder's customer (first acquirer) to split volume licences and sell them separately provided that he makes an equivalent number of his own copies unusable.«

In conclusion:

This means that, in general, it can no longer be disputed that selling second-hand software licences – even taken from volume licences – is acceptable.

However, such sales are subject to certain prerequisites:


  • The programs need to be separately marketable, that is, standard software products.
  • The licence for use issued by the manufacturer must be valid for an unlimited period of time.
  • The software must have been distributed legally. The right to buy and sell does not extend to illegal copies.

Moreover, the software product must actually be passed on. In other words, software sellers need to make sure to make their own copies in question unusable.

What about Switzerland?

The legal situation in Switzerland is quite similar to that in the European Union.