EU Court Rules on the Resale of 'Used' Computer Programs in UsedSoft GmbH v. Oracle Intl. Corp.

The Court of Justice of the European Union (the “EU”) released its much-anticipated ruling in UsedSoft GmbH v. Oracle International Corp. Under EU law, the distribution right of a software copyrightholder is exhausted after the first authorized sale, so that a lawful acquirer is entitled to resell software. The Court held that this right applies regardless of whether the software was originally distributed on a physical medium or as a download from the copyrightholder’s website. Taking a different approach than U.S. courts, the Court also held that a copy of a computer program is deemed “sold” where the acquirer obtains the right to use its copy for an “unlimited period” of time in return for the payment of a “fee” enabling it to obtain a “remuneration corresponding to the economic value” of such copy, even if the acquirer enters into a license purporting to restrict transfers by the acquirer.