It’s been a while since the European Court of Justice (ECJ) dismissed the UsedSoft judgment (July 2012) that the highest European court, the legal status of software licenses quite shook. It then created a precedent has also become well and truly seeped into the Dutch legal practice, with the recent implementation of the UsedSoft doctrine by the court central Netherlands.
UsedSoft
The question in 2012, when the ECJ was ahead or a software vendor may oppose the transfer of a right to use software by which one the purchased license. The principle of exhaustion of copyright is of great importance: as the author of a book can not object if I his book, which I bought at a bookstore, to another through sale
This also applies to software, the ECJ ruled that time. If a user the software pre-pay a market rate for the (online) copy of the program, the user this copy on a data carrier may download and use is also unlimited in duration, there is a ‘sale’ of this specific copy of the software. This means therefore that the copyright on that copy is exhausted and the supplier may not oppose the further sale of that copy by the purchaser, provided that the first purchaser actually no more about his own copy can have.
Netherlands
This doctrine fit neatly to the Dutch court in a case published last week (via: rechtspraak.nl) . In this issue defendant purchased a license for the use of software that can generate charts and other graphical representations of processes. This copy of the software, then handed over to the defendant Vendor Link, where plaintiff had strong objections to CWS. However, the court finds that:
“ From the production 8 by summons submitted confirmation and license agreement shows that:
– software CWS (by anyone) can be downloaded from the website of CWS,
– the license is not a certain period of time is granted,
– Is the license a total price must be paid USD 395, -. “
Because this fee as a market is considered and the initial purchaser also has disabled its own copy of the software, the court concludes that the copyright, in the light of UsedSoft was on that particular instance CWS exhausted and therefore could not oppose the transfer, let alone could ask for an extra fee. This despite the ban was included in the license agreement to transfer the license.
Interesting details
Nice to mention is that the court UsedSoft doctrine could apply not just here; there was still an interesting, international touch to the issue. Because the software is located in Canada, the court must first determine the (material) govern the legal relationship. In addition, the court concludes that the CISG applies now – compare UsedSoft – involves a purchase of Goods that were not purchased for personal use. This is an interesting further qualification of purchased software, where lawyers should certainly take into account.
In addition, the court still provides an interesting, unsolicited opinion. Both the UsedSoft case as in the aforementioned judgment is assessed whether there is exhaustion under the so-called Software Directive. That is of course logical, since it was in both issues to software programs. However, there is a similar depletion key under the “general” Copyright Directive, which include applicable to software “ contains not only a computer but also sound and graphic elements, although they are encoded in computer language, its own creative value that does not have to be limited to these encoding . “
The court finds that there is no question in this matter of such complex software and exhaustion regime under the Copyright Directive therefore plays no role. However, the court, however, note that and it was indeed complex software, the software would be exhausted under the Copyright Directive. Dutch court does the work for the CJEU already because it considers that the “ in that case [...] for the hand [is] that the Court of Justice, the exhaustion regime laid down in Article 4 of the Copyright Directive will explain in line with its judgment in UsedSoft , “This is because of the great parallels that can be drawn between the different exhaustion regimes. Obviously, it is the highest European court itself to explain the Copyright Directive, but the court seems defendants in such infringement cases or to meet by already offer an additional opening to demonstrate exhaustion of a copy of (complex) software.
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