A quick note on second-hand software

This is not strictly speaking a mobile topic but, as we all deal more and more in digital goods, I reckon it has its place (and, then, I cannot deny my legalease origins, I suppose), so here we go:

In case you haven’t heard, the European Court of Justice recently ruled against Oracle with respect to the question if a licensee was allowed to sell this license to someone else. The case at hand was against Usedsoft, a company that has made exactly that its business. Now, often software licenses prohibit the onward sale to third parties (the vendors would rather like to sell a new license to a new customer). And, of course, if there was a market opening up for second-hand licenses (mobile games anyone?), this could impact the commercial opportunities of the originators of the software quite significantly. And lots of people came out quickly complaining.

However, what would you say if you could not sell your car once you would want to buy a new one? Or that Ikea table that looked so radically modern only 3 years ago? Unthinkable, huh? That would be a world without car-boot sales, flea markets or eBay or GameStop (who make tons of money with pre-owned games). And, no, no one would understand why that should be prohibited: you bought that car/table/whatever after all, so it’s clearly yours, right?

And, yes, it is. And this principle (well, following the rough outlines here at least) was also applied by the European Court of Justice. And I, for one, would agree with that. What the court also said (and this is where the nitty gritty might come in) is that the seller of a used piece of software would – of course – be prevented from continuing to use it after the sale. I mean: you cannot use your car anymore after you sold it either… However, this is of course not just as trivial for digital goods that can much more easily duplicated than physical ones.

When it comes to the commercial implications, I would posit that this is “merely” a question of business models: if you are “selling” (and Oracle’s lawyers will of course say it wasn’t a sale but a mere license) something, that would be it. However, if you provide an ongoing service (“SaaS”), your continued benefit is in the service, not the piece of software that carries or facilitates that service. So hard to do? No.

So, can we all get back to earth and crack on with it then? Thank you!

Oh, and happy July, 4th to my US friends! 🙂


Game Horizon 2012 / Slides


Amazing Alex? Really amazing?


  1. how about mp3- or, say avi-files? could these be considered software?

  2. Good question. I am not a complete expert in this but I guess the difference between software and digital media files is that the former is executable whereas the latter is not. I would therefore guess that mp3, etc would “merely” be considered yet another media format that is already captured under the respective protections.

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