tag:blogger.com,1999:blog-5574479.post755457060653058963..comments2024-03-29T06:53:23.405+00:00Comments on The IPKat: UsedSoft and the principle of exhaustion: CJEU ruling published todayVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger9125tag:blogger.com,1999:blog-5574479.post-49475402210595046092012-07-04T22:54:12.155+01:002012-07-04T22:54:12.155+01:00Mark - when you "buy" a piece of softwar...Mark - when you "buy" a piece of software then, as well as possibly getting a physical disc or whatever, you also get the right to use the software at least to some extent. You can't copy it for your friends, and you don't own the copyright, but you can use it on your computer which involves copies being made. The seller is not allowed to simply say "Sucker!", withdraw his permission and sue you for copyright infringement while still keeping your money. So in this sense, you "own" the right to use the software. If you're a company with an imaginative accountant, you might even show this right in your accounts as an asset, seeing as it cost you money and it is presumably worth more money to you than the purchase price (otherwise you wouldn't have bought it in the first place).Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-48850531408005078662012-07-04T18:29:10.115+01:002012-07-04T18:29:10.115+01:00If the terms of the license agreement providing th...If the terms of the license agreement providing that the licence is not transferable may be overridden by the courts, what about licences reqiring an annual payment? If I stop paying, am I entitled to "sell" the software to a third party for their use? Or even, am I entitled to continue using the software?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-50342612347004863962012-07-04T12:35:00.862+01:002012-07-04T12:35:00.862+01:00"Observing that the term ‘sale’ in Article 4(..."Observing that the term ‘sale’ in Article 4(2) must be regarded as designating an autonomous concept of EU law to be interpreted in a uniform manner throughout the EU, the Court relied upon a commonly accepted and (as was also suggested by AG Bot) necessarily broad definition of it as “an agreement by which a person, in return for payment, transfers to another person his rights of ownership in an item of tangible or intangible property belonging to him.”"<br /><br />Mmmm... this seems to raise questions of national property law, despite the above comment.<br /><br />Even if we accept the statement quoted above, in what sense can you "own" a licence, when it is merely a contractual right and not an "item of intangible property" (under English law, at least)? You can own the underlying "intangible property" in the copyright, but not in the licence itself.<br /><br />More fundamentally, the legal principle of exhaustion of rights (whether under national or EU law) is murky and unclear. It was a bad idea for EU software copyright law to dabble in some areas of contractual relationships (rather than just stick to IP issues) but not others. It looked odd at the time of the original software directive and looks even odder now. There is no intellectual coherence in legislating for exhaustion of rights in one very specific factual situation, ie resale of a copy of a software product. If this is appropriate for software, why not for diagnostic kits, which are often accompanied by limited label licences?Markhttp://www.ipdraughts.wordpress.comnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-75095532273946320542012-07-04T11:40:59.462+01:002012-07-04T11:40:59.462+01:00Would this apply to wholly cloud based services? P...Would this apply to wholly cloud based services? Probably not in my view. In such a case there would be no "distribution" of software.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-38726342394674894862012-07-04T11:32:52.553+01:002012-07-04T11:32:52.553+01:00Info-Directive: "(29) The question of exhaust...Info-Directive: "(29) The question of exhaustion does not arise in the case of services and on-line services in particular. This also applies with regard to a material copy of a work or other subject-matter made by a user of such a service with the consent of the rightholder. Therefore, the same applies to rental and lending of the original and copies of works or other subject-matter which are services by nature. Unlike CD-ROM or CD-I, where the intellectual property is incorporated in a material medium, namely an item of goods, every on-line service is in fact an act which should be subject to authorisation where the copyright or related right so provides."<br />The Software Directive is not autonomous.<br />Court: "Sell a license"? Some systems do not allow transfer of copyright yet assignment only.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-73863946128337590662012-07-04T10:37:29.710+01:002012-07-04T10:37:29.710+01:00I just want to clarify the point on dividing licen...I just want to clarify the point on dividing licences and distinguish against other software vendors as I have read various articles and there is confusion of this point: “the first purchaser of a licence is not authorised by the effect of the exhaustion of the distribution right to subsequently divide the licence he has acquired”, which specifically refers to an Oracle ‘licence’ block of 25 CALs. This does not mean that Microsoft Volume Licence Agreements cannot be broken down eg: Select / Enterprise (an LA containing 1000 x Office 2010 can be sold off in parts). However, you cannot break down the Office 2010 PRO and sell off as Word, Excel, PowerPoint, Access etc. The closest Microsoft example to the Oracle ruling is the old Windows SBS blocks of 5 or 20, which you cannot break down and sell off.<br /><br />In any case, this court ruling puts a massive dent in the FUD (Fear, Uncertainty & Doubt) tactics employed by the software vendors. However, worth noting that Usedsoft's use of a ‘Notary’ (in part, to hide where the licences came from) was deemed illegal by the German courts and Usedsoft is now also going through insolvency proceedings. There are other secondary software licence suppliers whom adopt more transparent business models that do not rely on the Exhaustion Principle eg: www.Discount-Licensing.com.Discount-Licensing.comhttps://www.blogger.com/profile/14232496695070766762noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-34432901399727586512012-07-04T10:16:07.781+01:002012-07-04T10:16:07.781+01:00This is a really interesting first post. Could I ...This is a really interesting first post. Could I make one small request though, which is for a one-line executive summary of the implications of the judgement, for those of us who only sometimes have time to skim read IPKat posts? Thanks!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-7699603852215450892012-07-04T08:28:07.819+01:002012-07-04T08:28:07.819+01:00And now we arrived at diversity of the national sy...And now we arrived at diversity of the national systems once again. Copyright Act, Bulgaria: <br />Art.18a (1) The first sale or other transfer of ownership in the original of the work or a copy thereof by the right owner or with his consent on the territory of [EEA]shall terminate the distribution right regarding the work or copies thereof with the exception of the right to authorize further rental.<br />...<br />(3) The provision of paragraph 1 shall not refer to transmission of originals of the<br />work or copies thereof in a digital form with regard to material copies of the work made by the user with the consent of the right owner.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-65864535441715100782012-07-03T14:16:35.416+01:002012-07-03T14:16:35.416+01:00The Court has made clear that online transactions ...The Court has made clear that online transactions can be considered as fully-fledged transfers of ownership even when they are dressed up as "services" agreements. It will be interesting to see whether the same applies to subject matter other than computer programs. The Copyright Directive does not seem to preclude this reading when it says "The question of exhaustion does not arise in the case of services and on-line services in particular." (Rec. 35)guidohttps://www.blogger.com/profile/01642629692044961085noreply@blogger.com