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Disclosure of software licences – obligation of the customer?
The question of whether the documents and information on which used software is based must be disclosed is still the subject of controversial debate on the market. This is despite the fact that the legal situation in Germany and Europe excludes such a requirement according to the ECJ and BGH. Granting international software manufacturers sovereignty over the use of their products beyond the initial use is contrary to the European free movement of goods. In addition, the principle of exhaustion applies to intangible goods in Germany. Nevertheless, it is in the interest of both retailers and buyers to clarify certain points of the licence check in order to be legally protected. In this case, it is the retailer who is responsible for checking the licence.
How relevant is the disclosure?
The purchase and sale of used software is generally recognised by global software manufacturers. Nevertheless, the sale is subject to legal regulations. In order to place software on the second-hand market, the previous owner must hand over all licence rights, completely remove the software from their computers and destroy backup copies. They must also sign a binding confirmation that the software has been deleted.
Contrary to the current debate on disclosure, buyers of used software are not obliged to provide documents and information such as licence agreements or sources of procurement. Under German law, only the principle of exhaustion applies to the intangible asset of software. This means that the resale of software does not infringe the copyright of its manufacturer, but rather the first time the software is placed on the market. This regulation is fundamental to ensuring that used software can be freely traded without any control by the manufacturer. However, the question of whether all exhaustion requirements are met is not always easy to answer. It is the retailers’ task to create transparency here – only then can used software be acquired legally and legitimately.
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What do buyers and retailers need to consider?
Anyone trading in used software must prove that the legal provisions have been complied with. Anyone who purchases it legally must ensure that the software is sold legally. Dealers must therefore be in possession of the documents that prove precisely this legality, such as the declaration of destruction from the original seller. Other documents serve to document the origin of the used software as completely and transparently as possible and to be able to present the chain of rights to the buyer in an audit-proof manner.
It is also important for the retailer to check whether the software was licensed by the first purchaser for use within the European Economic Area – because only then does the exhaustion rule apply. Overall, according to the BGH: The buyer of used software must be informed by the seller of the ‘intended use’ of the software. This does not mean that the sources of acquisition are disclosed, but that the buyer is informed of the relevant licence terms so that he can act lawfully in accordance with the software licences. A declaration of exemption, a guarantee or audits as proof of legal acquisition are also not necessary, even if they are sometimes offered by used software providers.
FURTHER TIPS ON THE SUBJECT OF USED SOFTWARE
Buy used software legally compliant with LizenzDirekt
Purchasing used software is worthwhile because the costs are much lower than for new goods. We offer our customers the right products with the necessary legal security. To this end, we assess in advance whether a software licence meets all the requirements for legal purchase and sale. As a renowned dealer of used software, we check licences and ensure the traceability of software licences. In this way, we offer our customers a reliable service that relieves them of disclosure issues and ensures comprehensive legal certainty when purchasing used software.
Do you have questions about the disclosure of the rights chain and legal certainty when purchasing used software? Contact us, we will be happy to help you!
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