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German law on resale of used software

In a landmark judgment by the European Court of Justice, the resale of used software was declared legal. A court in Germany now has to decide whether SAP’s terms and conditions, which prohibit the resale of its used software unless consent is obtained, conform to EU law.

German law on resale of used software ©-Thomas-Jansa-Fotolia

German law on resale of used software ©-Thomas-Jansa-Fotolia

SAP software

Susensoftware is a company which trades in used SAP software. In its terms and conditions, the software giant SAP prohibits the resale of its software licences without the company’s express consent. The terms also regulate how many users may purchase the software.

Susensoftware brought a claim against SAP for breach of German competition law, claiming that SAP’s terms and conditions illegally hinder the trade of used software licences (Az. 315 O 449/12).

SAP clauses breach EU law

Following oral submissions, the Regional Court of Hamburg reached the conclusion that it is highly likely that the clauses concerned breach EU case law, which generally permits the resale of used software.

Judgment due in October

SAP was not prepared to release a statement concerning the on-going trial. The company is required to deliver written submissions to the court by September and the final judgment is expected to be published on 25th October 2013.

Similar dispute

In a similar dispute between the software producer Oracle and the used software trader Usedsoft, Germany’s Federal Court of Justice (Bundesgerichtshof) reversed a previous decision of the Higher Regional Court of Munich which declared the resale of used software licences illegal. The case was remitted to the Higher Regional Court to be reheard.

The final judgment is still outstanding in this case as well, so used software traders wait with bated breath.

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Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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