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UsedSoft doctrine tested by the Dutch court

A UsedSoft doctrine has been tested by the court in the Netherlands and it ruled that the doctrine applies also to Dutch customers.

In “UsedSoft v. Oracle” the ECJ issued a landmark decision on the sale of “second hand” software. According to the decision, reselling “used” software programs originally distributed via download does not infringe the copyright holder’s distribution right, provided that the originally downloaded copy is deleted or rendered unusable.

In essence, the ECJ has recognized that the principle of exhaustion applies equally to tangible and intangible copies of software programs. The court argued that online transmission is the “functional equivalent” of the supply of a tangible medium.

The recent case before Dutch court confirmed the fundamental impact of UsedSoft doctrine on distribution, license and maintenance models of software.

A Canadian software supplier filed a claim of copyright infringement against the Dutch company for reselling the software in violation of the license agreement that contained a clear restriction on such “second hand” sale.

The Dutch court found that the sale of software under the license agreement should be treated as a contract within the meaning of the Vienna Convention on the Sale of Goods by arguing that the use has been granted for an indefinite period of time, that the full price was paid at once, and that the software was delivered (legally entered the EU market).

The judge ruled that, in the light of UsedSoft, the terms of license agreement cannot prevail over the mandatory provisions of the law.

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