Software downloads not mere licence transfer

EU legal view is that a sale has taken place whether via internet or on physical media

Downloaded software may be just as eligible for resale as software sold on a CD or other physical media, according to a preliminary opinion in an EU Court of Justice case.

Oracle recently brought a case in the Court against Axel W Bierbach, the administrator of German pre-owned-software reseller UsedSoft. According to Oracle, the downloading of its software by customers only represents a sale of a licence, rather than a software sale.

But the advocate general of the European Court of Justice, Yves Bot, has disagreed. He said this morning that the sale of software takes place whether it happens over the internet or via physical media.

"The rightholder [Oracle] draws a somewhat artificial distinction between the making available of the copy of the computer programme and the grant of the right to use it; the assignment of a right of use over a copy of a computer program does indeed constitute a sale within the meaning of Article 4(2) of Directive 2009/24," he said.

However, Bot went on to say that classifying the transaction as a sale is not in itself sufficient to conclude that the party that has in that sense bought the product can legally redistribute or resell it.

Deciding whether the party that has downloaded a specific piece of software has the right to resell it is more difficult, Bot indicated.

"To my mind, however, the distinction as to whether the sale takes place remotely or otherwise is irrelevant for the purposes of applying that rule," he said.

The case, originally filed in the German Federal Court of Justice in 2011, proceeds. Bot's opinion will inform the Court's final decision.