tag:blogger.com,1999:blog-5574479.post3045601631002767802..comments2024-03-29T11:10:02.290+00:00Comments on The IPKat: EU law forbids the resale of non-original tangible copies of computer programmesVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-5574479.post-7951712451811534332016-11-28T15:11:47.421+00:002016-11-28T15:11:47.421+00:00I am curious how do you understand para. 53-54, al...I am curious how do you understand para. 53-54, also 55-56<br /><br />53 The lawful acquirer of the copy of a computer program, who holds an unlimited licence to use that program but who no longer has that original material medium on which that copy was initially delivered to him, because he has destroyed, damaged or lost it, cannot, for that reason alone, be deprived of any possibility of reselling that copy to a third party, since this would render ineffective the exhaustion of the distribution right under Article 4(c) of Directive 91/250 (see, to that effect, judgment of 3 July 2012, UsedSoft, C‑128/11, EU:C:2012:407, paragraph 83).<br />54 Thus, as Microsoft acknowledged in its written reply to the questions put to it by the Court, the lawful acquirer of an unlimited licence for the use of a used copy of a computer program must be able to download that program from the copyright holder’s website, since that downloading constitutes a reproduction of a computer program that is necessary to enable the new acquirer to use the program in accordance with its intended purpose, as the Court held in the judgment of 3 July 2012, UsedSoft (C‑128/11, EU:C:2012:407, paragraph 85).<br /><br />It seems that, although one cannot sell a back-up copy if tangible medium has been destroyed, one can still resell the license (user rights) to software originally supplied on a tangible medium by allowing subsequent acquirer to download copy from the vendor webpage (similarly to UsedSoft case)Liliia Opryskhttps://www.blogger.com/profile/03735694101435154483noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-27894207257397410402016-11-28T09:59:04.304+00:002016-11-28T09:59:04.304+00:00Case C‑128/11:
70 An original acquirer who re...Case C‑128/11:<br />70 An original acquirer who resells a tangible or intangible copy of a computer program for which the copyright holder’s right of distribution is exhausted in accordance with Article 4(2) of Directive 2009/24 must, in order to avoid infringing the exclusive right of reproduction of a computer program which belongs to its author, laid down in Article 4(1)(a) of Directive 2009/24, make his own copy unusable at the time of its resale. In a situation such as that mentioned in the preceding paragraph, the customer of the copyright holder will continue to use the copy of the program installed on his server and will not thus make it unusable.<br />78 Admittedly, as stated in paragraph 70 above, the original acquirer of a tangible or intangible copy of a computer program for which the copyright holder’s distribution right is exhausted in accordance with Article 4(2) of Directive 2009/24 who resells that copy must, in order to avoid infringing that rightholder’s exclusive right of reproduction of his computer program under Article 4(1)(a) of Directive 2009/24, make the copy downloaded onto his computer unusable at the time of its resale.<br />79 As Oracle rightly observes, ascertaining whether such a copy has been made unusable may prove difficult. However, a copyright holder who distributes copies of a computer program on a material medium such as a CD‑ROM or DVD is faced with the same problem, since it is only with great difficulty that he can make sure that the original acquirer has not made copies of the program which he will continue to use after selling his material medium. To solve that problem, it is permissible for the distributor — whether ‘classic’ or ‘digital’ — to make use of technical protective measures such as product keys.Pedro Malaquiashttps://www.blogger.com/profile/07534086208709473863noreply@blogger.com