Exhausted Yet? The First-Sale Doctrine and the Second-Hand Market for Software Licenses in the European Union

Abstract

In UsedSoft GmbH v. Oracle International Corporation, the Court of Justice of the European Union held that owners of software copyright could not prohibit the resale of used perpetual licenses allowing the use of such programs. The decision promises to significantly affect the software market and other digital industries. It also illustrates an instance where the CJEU forces a decision using well-established principles rather than adapting to an ever-changing technological landscape. While the CJEU’s ruling came as a surprise to many in how far it was willing to go in applying the principle of exhaustion to intangible materials, its attempt fell short from elucidating a clear rule on the rights of second-hand buyers.