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FAQ – Used Software

Frequently asked questions on how to handle used software

Is purchasing and selling used software licenses legal?

Yes, the trade of second-hand software, which has been marketed for the first time in the EU or in the European Economic Area, is legal with the consent of the creator (i.e. the manufacturer). This was decided by the European Court of Justice in its ruling dated 3/7/2012. The Federal Court of Justice of Germany confirmed the legality of the trade of used software licenses in July 2013.

Is there an entitlement to updates for used licenses?

Of course – provided that the software entails a version entitled to being updated. Generally, the rights that apply to the initial owner also apply to the second owner of a software license or in other words: The original rights remain unaffected when selling or purchasing used software licenses; this applies to updates as well as to patches and downgrades.

In which countries can used software be sold?

The trade of used software is permitted in all countries of the EU or the European Economic Area according to the ruling of the European Court of Justice dated 3/7/2012.

As of which date can used software licenses be seen on the licensing portal?

You can find all used software licenses as of July 2018 on our licensing portal.
Do you require information regarding licenses older than that date? If so, please feel free to contact us.

Compared to buying new software, are there any disadvantages to purchasing used software?

Not at macle. Contrary to hardware, software is not subject to any wear of materials. Therefore, there is no difference between the functionality of used licenses and new ones. Consequently, the buyer does not have any disadvantages compared to a new purchase. On the contrary: Quite a few software versions, which are still used in companies, government agencies, etc., are no longer available as brand new merchandise. In such cases, the secondary market for software is the only way to acquire such software. The purchase of used software from macle takes place in conformity with the law and the manufacturer. It represents an extremely cost-effective alternative to purchasing new computer programs – with potential savings of up to 70%.

Can used software licenses be sold in Switzerland?

In the ruling art. 12, sec. 2 of the Swiss Federal Law on copyright and neighbouring property rights (CRA), it is stated that “in general, used software can also be purchased and sold in Switzerland, insofar as the software was sold by the creator with his/her consent.”

Furthermore, “If a creator (…) sold a computer program or agreed to the selling thereof, it can be resold or sold in a used state.” Moreover, there was a positive ruling against Adobe at the Canton Court in Zug on 4 May 2011.
In addition, the sale indicates the manufacturer’s definitive consent per se with the initial sale.

What happens when the manufacturer is audited and the use of used licenses?

The interests of the manufacturer in an audit is to verify the software used, i.e. to check the licensing. The legal situation is clear-cut and the rulings of the European Court of Justice and the Federal Court of Justice of Germany superimpose the manufacturers’ own conditions and clauses. The manufacturers are also aware of this.

A reference to the valid legal situation should suffice in eliminating any objections. You can even entirely object to an auditing of your used software. That is to say, the exhaustion of intellectual property rights also applies here: Sold is sold; the manufacturer no longer has the right to verify used software.

Is there a quantity discount for volume licensing?

Yes, macle grants discounts for large volumes of used software licenses. Request your individual offer now and ask us about the quantity discount!

How is a license transferred properly?

Reputable providers of used software licenses provide for a legally compliant transfer of the license in clearly defined processes including documentation.

Does macle also purchase and sell from/to private individuals?

Unfortunately, no. macle only purchases and sells used software licenses from commercial use and only to businesses, associations, unions, government authorities as well as social and healthcare institutions.

Can volume license packs be split up?

Yes, that is also permitted. This was confirmed by the Federal Court of Justice of Germany in December 2014: Used software can also be sold individually if it was previously purchased as a volume license pack, i.e. as a bundle of individual licenses. Of course only the amount of licenses, which were originally included in the pack, can be sold. A miraculous increase in licenses caused by dividing the individual licenses up, is of course still prohibited.

Does the software manufacturer have to agree to the sale of used software to macle?

No. According to the ruling of the Federal Court of Justice of Germany, the respective manufacturer does not have to agree to the sale of used software licenses. Pursuant to said ruling, the manufacturer’s copyright lapses with the initial sale of its software copies in the EU.

Do you have any other questions, which were not answered in the FAQ section? If so, please do not hesitate to contact us using our contact form or give us a call.