[License-review] First Sale in Europe (upcoming preliminary ruling)

[Alexander Terekhov]

This may be of interest to lawyers and non-lawyers on these
(license-review at opensource.org, license-discuss at opensource.org,
board at opensource.org) lists:

The European Court of Justice, upcoming preliminary ruling on software
first sale:

https://emeapressoffice.oracle.com/Press-Releases/Bundesgerichtshof-legt-Frage-der-Zul%C3%A4ssigkeit-des-Handels-mit-gebrauchten-Softwarelizenzen-dem-Europ%C3%A4ischen-Gerichtshof-vor-1a3d.aspx

http://www.usedsoft.com/images/pdf/presseinfo/usedSoft_PM_usedSoft_saniert_Final_120202.pdf

http://www.ipo.gov.uk/pro-policy/policy-information/ecj/ecj-2011/ecj-2011-c12811.htm

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C-128/11

C-128/11

Oracle International Corporation, Redwood Shores, CA, USA v UsedSoft
GmbH, Munich

This case raises the following questions which have been sent to the
Court of Justice for a preliminary ruling:

1. Is the person who can rely on exhaustion of the right to distribute a
copy of a computer program a 'lawful acquirer' within the meaning of
Article 5(1) of Directive 2009/24/EC?

2. If the reply to the first question is in the affirmative: is the
right to distribute a copy of a computer program exhausted in accordance
with the first half-sentence of Article 4(2) of Directive 2009/24/EC
when the acquirer has made the copy with the rightholder's consent by
downloading the program from the internet onto a data carrier?

3. If the reply to the second question is also in the affirmative: can a
person who has acquired a 'used' software licence for generating a
program copy as 'lawful acquirer' under Article 5(1) and the first
half-sentence of Article 4(2) of Directive 2009/24 also rely on
exhaustion of the right distribute the copy of the computer program made
by the first acquirer with the rightholder's consent by downloading the
program from the internet onto a data carrier if the first acquirer has
erased his program copy or no longer uses it?"