Following the notable “UsedSoft” decision of 2012, the Court of Justice of the European Union (CJEU), with its October 12, 2016 judgment (Case C-166/15
), has now added to and complemented its jurisdiction: where software is sold on original material media, the “resale” of backup copies is not permitted.
In the case at issue, the software was sold on original material media. What was resold, however, were not the original media, but “backup copies”. According to the CJEU, resale of the original material media is permitted, but not resale of the backup copies. A backup copy may only be made and used for the needs of the persons having a right to use the program. Therefore, the resale of backup copies without authorization by the rightholder is also prohibited if the original medium has been damaged or lost. While the judgment is based on EU Directive 91/250/EEC then in force, the relevant provisions of the current Directive 2009/24/EC have the same wording. The CJEU also references differences to the “UsedSoft” decision. There, no original material media were sold, but the acquirer of an indefinite license had to download the software from the manufacturer’s website. In order to resell that copy under certain conditions, the initial acquirer must in particular make any copy of that program in his possession unusable.
With the judgment of October 12, 2016 on “used software”, the case-law of the Court of Justice of the European Union continues to take shape. If software is distributed on original material media, only those original material media may be resold, but no backup copies.