Endlich angekommen im digitalen Zeitalter!?

With a surprise from Luxembourg the long lasting disputes regarding the second hand marketing of software are on their way for a final judgment by the German Federal Court of Justice (BGH). In fact, the decision of the European Court of Justice (ECJ) dated 3 July 2012 now guides the BGH in its coming final decision. Although in particular in the light of the Art. 234 reference decision of the BGH various experts expected that the marketing of so called used software would be broadly prohibited, the ECJ did not follow that line. In contrast to the more restrictive opinion of the Advocate General Bot the ECJ held that at least certain ways of second hand marketing of used software are legal. The ECJ argued that according to Art. 4 (2) of the Directive on the Legal Protection of Computer Programs (2009/24/EC), being lex specialis to the so called InfoSoc Directive (2001/29/EC), the principle of exhaustion of the distribution right already applied in case of »sale«. Following on this the Court at first glance argued rather formalist in stating that a sale is a sale independent of whether the producer or right holder allows download of a program or whether it is distributed physically on a material medium. The expression »sale of a copy of a program« would not differentiate between tangible and non-tangible ways of sale. Furthermore, also the second acquirer of such »sold« copies would be a lawful acquirer in the sense of Art. 5 (1) of the Directive on the Legal Protection of Computer Programs (2009/24/EC), even if no license agreement had been concluded with him, because the right holder »relying on [... the] exclusive right of reproduction laid down in Article 4(1)(a) of that directive, [...] would [...] render ineffective the exhaustion of the distribution right under Article 4(2)«. With respect to the question whether volume licenses can be split, the Court answered in the negative. However, in that respect the ECJ made its statement from a purely copyright perspective and had not to decide the related questions of anti-trust law and (national) contract law. Moreover the ECJ clearly pointed out that also in case of the distribution of digital products »in order to avoid partitioning of markets« the right holder having been rewarded (once upon first sale) should not be in a position to object to the further redistribution by »demand[ing] further remuneration on the occasion of each new sale«. The ECJ recognized the risk of unlicensed copies, but argued that this risk also exists with regard to the sale of tangible media. It would be on the software industry »to make use of technical protective measures such as product keys« and ensure by all technical means at its disposal that a copy still in the hands of the reseller is made unusable. The decision clearly marks a corner stone, but only partly fits into the overall dogmatic framework of copyright law. However, its reasoning is well in line with the long tradition of case law on the completion of the single market and is likely to be adapted for other copyright industries.