Judgment of the Court (Grand Chamber) of 3 July 2012 (reference for a preliminary ruling from the Bundesgerichtshof - Germany) - UsedSoft GmbH v Oracle International Corp.

(Case C-128/11) 

(Legal protection of computer programs - Marketing of used licences for computer programs downloaded from the internet - Directive 2009/24/EC - Articles 4(2) and 5(1) - Exhaustion of the distribution right - Concept of lawful acquirer)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: UsedSoft GmbH

Defendant: Oracle International Corp.

Re:

Reference for a preliminary ruling - Bundesgerichtshof - Interpretation of first subparagraph of Article 4(2) and Article 5(1) of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (OJ 2009 L 111, p. 16) - Downloading of copies of computer programs from the internet with the rightholder's consent onto a data carrier on the basis of a software licence - Whether that action can be classified as exhausting the rightholder's distribution right with regard to the copies downloaded - Marketing of 'used' licences of programs downloaded by the first acquirer - Concept of 'lawful acquirer'

Operative part of the judgment

1.    Article 4(2) of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs must be interpreted as meaning that the right of distribution of a copy of a computer program is exhausted if the copyright holder who has authorised, even free of charge, the downloading of that copy from the internet onto a data carrier has also conferred, in return for payment of a fee intended to enable him to obtain a remuneration corresponding to the economic value of the copy of the work of which he is the proprietor, a right to use that copy for an unlimited period.

2.    Articles 4(2) and 5(1) of Directive 2009/24 must be interpreted as meaning that, in the event of the resale of a user licence entailing the resale of a copy of a computer program downloaded from the copyright holder's website, that licence having originally been granted by that rightholder to the first acquirer for an unlimited period in return for payment of a fee intended to enable the rightholder to obtain a remuneration corresponding to the economic value of that copy of his work, the second acquirer of the licence, as well as any subsequent acquirer of it, will be able to rely on the exhaustion of the distribution right under Article 4(2) of that directive, and hence be regarded as lawful acquirers of a copy of a computer program within the meaning of Article 5(1) of that directive and benefit from the right of reproduction provided for in that provision.

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1 - OJ C 194, 2.7.2011.