Der Vertrieb von gebrauchter Software aus urheberrechtlicher Perspektive release_fjzjop4ev5aovmuyewqelyj2lu

Abstract

At first sight, the new business model of the sale of used software seems to be permissible: A third party buys a computer program from a dealer of used software or directly from another owner who does not need his software any more. Nowadays, a second hand sale per se should not particularly evoke the impression of an illegal act. Therefore, why should the sale of used software not be permitted? However, a closer look reveals that the first impression is deceptive. Literature and court decisions are inconsistent on this issue. The root of the problem lies within the characteristics of software itself. Due to its novelty and continuous development, it is hardly possible to cover all feasible legal problems by the applicable statutory provisions. Further, in order to find a solution to the problem, the characteristics of copyright law (e.g. the moral rights of an author) must also be taken into account. When assessing the permissibility of the sale and purchase of used software, the contract regarding the use of software concluded between the software producer and the (first) costumer must be examined. As a preliminary question, it has to be assessed whether such a contract (e.g. shrink wrap license) between the software producer and the customer is valid. This might be questionable for example when the software is sold by a third party, and the software producer is not party to the software purchase. If the contract is held valid, it must further be examined if the contractual provisions are consistent with the applicable mandatory provisions (e.g. principle of exhaustion). If the outcome of such an examination is that the contract is fully effective and legally binding, it must be further examined whether it is permissible to assign the rights granted in the contract to a third person. If such assignment is not possible or the contract per se is invalid, a lawful acquirer of the software might be able to use the software according to the provisions of free uses of works (freie Werknutzungen), if the software its [...]
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