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back to article You can flog 'used' software, but read Ts&Cs first – ECJ

Companies that sell 'used' licences for other firms' copyrighted computer programs that are downloadable from the internet can legitimately do so – but only provided the terms of the rights-holders' licence do not put a bar on reproduction without their consent, a legal advisor to the EU's top court has said. Advocate General …

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Anonymous Coward

Hooray!

And a big "fuck you" to all those games companies who are currently whining about how second-hand sales shouldn't be allowed.

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Anonymous Coward

So you can sell software you have acquired...

... provided that the software is on the original media that it was sold to you on.

Cue M$ and everybody else forcing customers to download rather than buy shink-wrapped so as to avoid this possibility.

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Silver badge

Correct me if I'm wrong

You can sell licenses on but you can't make copies of the software to go with them, nor can the recipients of the licenses make or download copies, if I've understood it correctly.

So if I have original installation media with, say 5 licenses, can I then buy X more used licenses and legitimately install to X more machines using the original media?

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Angel

Re: Correct me if I'm wrong

Yes, the way I read it that's correct. Of course that's my opinion not proper legal advice, the language in the article is a bit mind-bogglingly legalese, why can't they just speak plain English?*

Another point that seemed to be there but I'm not sure because of the language... if I have a license AND I have the physical media then there should be no impediment to my selling both license AND physical media to a third party, since like this the third party has not made any unauthorised copy of the software.

*I bet it's perfectly possible for all laws and legal arguments to be made in plain English, and the only reason for using legalese jargon is the same as all jargon use everywhere - to exclude outsiders and create a de-facto cartel of insiders. The usual 'public' reasons given for using legalese instead of plain English is that English is ambiguous and legalese has very specific meanings and is more clear, however if that were true, then why are there still arguments over laws written in legalese? Because they are NOT that clear

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Silver badge

Re: Correct me if I'm wrong

I think you're right about being able to sell on both media and license, but as you say - it is mind-bogglingly complex language.

One point I also took is that the right to reproduce in order to facilitate installation of a 1st-hand purchase does not apply if it is sold on.

Or at least I think so. Need to look at the actual law as opposed to the judgement.

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Gold badge

That right to control further rental

"with the exception of the right to control further rental of the program or a copy thereof"

If the original vendor has been picky about who they are willing to sell to, then it is not unreasonable that they should be able to restrict who these people sell *on* to. However, if the original vendor has sold licences through distributors who sell to anyone with cash, they've given up control over the distribution, and so the quoted exception would not apply. (You can't take back stuff once you've given it away.) It seems to me that this is the situation for the majority of software that you or I might have heard of.

Of course, the right to control further rental could be construed in another way. It could be "only we have the right to choose distributors, because we want to block the second-hand market so that we can gouge our customers". However, if Oracle are actually requesting that interpretation, then this surely raises questions in the mind of an impartial observer of "What makes them think they can get away with such blatant gouging? Do they think they've got their customers over a barrel or something?". Such questions would, I hope, invite the attentions of the monopolies regulators and *they* might reckon that blocking the second-hand market wasn't allowable behaviour for a monopolist.

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@AC - So you can sell software you have acquired...

Not sure whether you have seen the story elsewhere about the patent M$ has filed.

Somewhere in the not too distant future Windows will stream from the cloud as will Office I'll bet, why do you think the new Windows has an app store?

And then of course there's apple with Lion, Mountain Lion and their app store with no disks.

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Silver badge

Re: @AC - So you can sell software you have acquired...

I actually don't have a real problem with download only software, if the price is right. OS X Lion at £20 isn't too bad. £70 is the best I can find for an OEM disk of Win 7.

I doubt MS will be selling their download Windows at that sort of price though, since it's their main income. Let alone console game publishers who have to pay a big cut to MS and Sony ...and are bloody greedy anyway.

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Silver badge

Re: @AC - So you can sell software you have acquired...

Even if software is downloaded, I can legitimately make a copy for myself for backup purposes. If then eventually I want to sell on a few years down the line, shouldn't it be OK for me to sell copy of the software + license, as long as I didn't keep a copy for myself?

One reason things are being locked up in App stores is that I CAN'T make a local backup copy.

I'm guessing it's also the same with e-books

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Coat

Hang on...

He's a bot!

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Silver badge

Important Words

From the article:<blockquote>However, consent is not required for reproduction or the other actions in relation to the computer program if those acts "are necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose, including for error correction".<blockquote>Obtaining a copy of a program that you have a licence to use surely falls within the definition of "necessary in accordance with its intended purpose".

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MOH

Advocate General Bot? Really?

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Basic contract law!

This also seems to ignore the basic English law of Contract.

That explicitly states that the terms of a contract are those known at the time the contract is formed - ie when payment is made & accepted.

Conditions cannot be added after that point in time.

It generally applies to the garbage on the back of delivery notes etc., but also covers any form of shrink-wrap or click-through licence discovered after purchase - all that American-style 'legal junk' is completely irrelevant here.

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Paris Hilton

Support?

Did I miss something or what happens about support? If I buy s/w with 12 months support & sell it on surely the support goes with it? Most support happens on installation so 2 customers => twice the hassle.

I know companies who have sold lifetime support & upgrades - that sort of relies on the customer settling in and not bothering you after a while, if they sell it on...

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