The ECJ qualifies used software resale rights
Last October 2016, the European Court of Justice (ECJ) published its Judgement in Case C-166/15 “Ranks”, which is, to the date, one of their most relevant decisions concerning used software resale.
It should be recalled that in Usedsoft case (C-128/11) the ECJ concluded that the exhaustion of rights according art. 4.2 of the Directive 2009/24 also occurs not only when the software is provided on a physical copy but also when is delivered by online means subject to (a) the license provides for an unlimited right of use, in exchange of a price that includes the economic value of the copy itself (b) the reseller disables the copy installed in their computer.
In “Ranks” case, the ECJ went a step further and considered also the case of exhaustion of rights in non-original copies of software when (a) the original copy has been harmed, destroyed or lost, and (b) the acquirer is not using the software or has uninstalled it.
Namely, the ECJ stated that the legitimate acquirer of a computer program, commercialized by the program owner or with his consent, is entitled to resale the used program according to art. 4.c of the Directive 91/250 if and only if such transfer does not undermine the owner´s right of reproduction according art. 4.a of the abovementioned Directive.
The ECJ highlights that the resale of back-up copies of a given program cannot be resold, even if the original copy has been harmed, destroyed or lost, without the program owner’s consent. Despite the prohibition included in art. 5.2 of the Directive 91/250 that impedes software owners to limit the creation of backup copies by contractual means, such prohibition does not extend to the right of reselling backup copies without the original support, regardless it has been harmed, destroyed or lost, said the ECJ.
Nevertheless, the ECJ notes in paragraphs 52 to 56 that, by virtue of the exhaustion of rights rule, the harm, destruction or loss of the original copy does not prevent the legitimate acquirer to resale the program in the used-software market. For this purpose, the ECJ requires the right holder to facilitate the download of the program from his website. In these cases, such download should be deemed a necessary reproduction for the legitimate use by the acquirer.