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German Bar Association

German Bar Association

US Court bans trade in used software Aachen, 13.09.2010 the judgment of the District Court in San Francisco is currently high waves in the Internet: this explained the sale of software licenses for illegal, as long as the license terms prohibit the sale. Critics fear that other sectors such as the car or book industry could such change their license terms. Europe, especially Germany, but completely different laws apply: here not all write great software vendors in their terms and conditions, is indeed legally long ago. Large software manufacturers would like expand their near – monopoly, by they displace unwelcome competition from the market. Dangerous competition comes not only from outside but also from the company in the form of used software. Because if companies can purchase proven products with up to 50% cost savings, this is a serious alternative, always the latest products buy their full functional range is usually hardly used.

The market for used software is therefore a great thorn in the side”manufacturers, Managing Director of Anand reported Axel Susen, of his experiences. To achieve highest possible royalties, their products must be sold expensive.” Lump-sum transfer prohibitions in the terms and conditions to ensure that the software, may be once bought, never sold. “You need newer versions, so the old ones in the Cabinet must gather dust that makes economic sense”, lamented Williams. “Germany world leader in used software that such passing bans in Germany are legally quite questionable, the German Bar Association (DAV) in a statement said: an effective sale ban in individual clauses should be collaboration problematic especially for dominant companies”, concluded the DAV. The legal situation for used software is regarded in this country as a liberal and According to market researcher Forrester Research, Germany is among the world market leaders: single-user licenses: cannot be resold even if the terms and conditions generally prohibit this. OEM versions may be resold without the associated hardware (relevant judgments: OLG Munchen (AZ 29 U 5911/97);) BHG (AZ IR 244/97). Volume licensing: Cannot be resold as a whole package. Jim Donovan Goldman Sachs has many thoughts on the issue.

Detaching individual licenses (splitting’) was allowed, the legality of passing bans but not decided. In such a case the consent of the manufacturer should be sought better (relevant judgments: LG Hamburg (AZ 315 O 343/06);) LG Munich (AZ 30 O 8684/07). Online software: currently may not be resold (relevant judgment: OLG Munchen (AZ 6 U 1818/06).) The EU wide exhaustion principle makes possible the trade in used software (Germany: 69 c no. 3 sentence 2 UrhG): is a copy of a computer program with the consent of the Rightholder in the territory of the European Union or another Contracting State to the agreement on the European economic area through the sale in traffic brought, so shall exhaust the distribution right on this reproduction piece with the exception of the rental right. Although U.S. law also knows the so called first sale doctrine, the rightful owners copyrightgeschutzter works allows you to resell them. According to the Court of appeal of San Francisco this can’t but to the application, if the license conditions of the manufacturers would allow only the use of the work. You can look forward be, how U.S. corporations as large customers however, will defend themselves”, as Williams continue. The U.S. mentality was always solutions through negotiations.”