The answers to the most common questions

All the answers to the most common questions on Resoft and the services provided. Do you not find the asnwer you are looking for?

Are The software licenses freely marketable?

Yes. The purchase of used software license transfers the user rigths of the program and the relative right to use, within the limits defined by the terms and conditions of the software sold. The author of the software products cannot oppose the ownership transfer of software considered as “used” or “already owned by third parties”, as stated in the sentence to the lawsuit C-128/11 pronounced by the COurt of Justice of the European Union on July 3rd 2012.

If I purchae used software, do I have the rights to receive assitance and software updates?

Yes, the purchaser of a used license is entitled to all the after-sales services provided by the vendor. In particular, a version authorized for updates keeps such status even when sold again as “used” and, therefore, the new rightful owner of the user license can obtain the updates from the developer as the previous one did.

The Europan Court has furthermore determined that following owners can still download the software from the developer when the products are sold and trasnfered online. It is possible to read in the sentence: ” the exhaustion of the distribution right is extended to the copy of the computer program sold as corrected and updated by the copyright holder”. The buyer then takes also advantage of the latest releases of the product, when the user license was coupled with a maintenance contract, if available.

Can a vendor refuse to provide maintenance services to lawful used licenses owners?

The vendor cannot refuse to activate maintenance services for used licenses when transfered to a new owner. Whereas infact that a used software version loses its practical and commercial value once if without the right to update from the vendor, it is possible to re-enact the owner rights to receive the new release by referring to the antitrust principles.

The vendor is the only possible supplier of its program updates and, therefore, it is in a monopolistic position. It follows that it is subject to an obligation to contract and may not refuse to enter into a maintenance contract with the purchaser of the license used that provides for the right to new releases, because this would lead to an abuse of a dominant position.

With the purchase of used software do I have to prove to the vendor the complete chain of previous owners?

The buyer of a used license has no obligation to do so. Once the manufacturer has sold a license it is freely tradable and tradable, with no need to provide evidence of any kind.

However, the full proof of the licensing chain to the producer is important as the purchase of a used software license is the purchase of a right, which can only be sold if it exists. In this sense, the complete proof of license chain back to the manufacturer is the best proof.

Resoft provides all the original documents needed to prove so.

If you buy a used software license should I still register it with the manufacturer?

A general obligation to register with the software manufacturer does not exist. Any different license conditions showed in the purchase contract are ineffective. The reason: the registration obligation imposed by contract is not compatible with the principle of exhaustion or with the free disposal of the owner.

Must the software vendor approve the sale of the used licenses?

No, to the purposes of the license transfer it is not required the approval of the company producing the software. The vendor has not power nor influence over the resale. For this same reason, the corresponding clauses in the license agreements are ineffective. The reason: a consensus right imposed contractually is not compatible with the principle of exhaustion or with the free disposal of license by the owner . In fact, it would give to the producers the option to withhold consent, contrary to the judgment of the CJEU.

What are the documents necessary to perfect a sale?

In order to prove ownership of user rigts of the license to be transferred , you must provide the following documents:

  • purchase contract – licensing agreement with the software vendor or any appointed distributor;
  • relative invoices from the vendor or appointed distributor;
  • payment proof, be it in the form of payment advice, VAT registers or any other way capable to demonstrate fulfilment of the costs .

Similarly, if it is planned a license maintenance, to to show the coverage period of the service you will need to produce:

  • last license maintenance contract with the software manufacturer or distributor in charge;
  • last invoices of the manufacturer, or any distributor in charge, relative to licensing maintenance;
  • payment proof, be it in the form of payment advice, VAT registers or any other way capable to demonstrate fulfilment of the costs.
Can you sell software licenses that are part of a volume license?

Individual software licenses from Microsoft Volume Agreements can be resold as used. This was established on April 4th 2008 from the Court of Monaco, in a case about payment of the purchase price (protocol number 30 O 8684/07). The judgment became final.

The Monaco court has ruled that “the sale or disposal of individual Microsoft software licenses, submitted under a volume licensing agreement, are also eligible without permission from Microsoft.” In other words, if Microsoft has sold more usage rights in a volume package, for example with a single master CD, its distribution right is exhausted for each license. Therefore you can sell licenses separately, not only in the form of the original package.

With this judgment, the Court also rejected Microsoft’s legal opinion, according to which the buyer of a volume license does not buy a single individual license but only a right of reproduction in multiple copies. The Monaco court refers explicitly to the judgment of the Hamburg Regional Court, which in June 2006 had declared admissible the resale of individual licenses Volume Licensing (protocol number 315 O 343/06). In its ruling, the Hamburg Regional Court has clearly rejected Microsoft’s argument that the splitting of licenses wasn’t allowed due to the advantageous terms granted. “This,” reads the judgment, “is entirely irrelevant to the issue of exhaustion admission. “In particular, the Hamburg Regional Court pointed out the ineffectiveness of the provisions limiting resale contained in the Microsoft license terms. The exhaustion would then be a “mandatory right, and not alienable by contract.

This has been confirmed also in the sentence pronunced by the Regional Court of Frankfurt on Decembre 18th 2012 (protocol number 11 U 68/11).

In which case it would not be eligible selling software licenses that are part of a volume license?

Microsoft argument, according to which a split of licenses wouldn’t be allowed due to the advantageous conditions granted, would be relevant if you face a speculative behavior of the acquiring software licenses, to the detriment of the vendor’s rights. The vendors, in fact, would have been harmed by a sale of used licenses only in the event that the customer bought a volume of licenses clearly superior to its needs, gaining incremental discounts than the treatment that would be reserved for the real lower needs, for the sole purpose of profiting in short-time room on the resale of an important part of the acquired licenses. The resale of licenses at a later date, their actual productive use within the application park of the company, motivated disposal of the product to new working needs or cessation of business discontinuance compete to easily demonstrate how such trades do not fall in the case as described above.

In which countries it is possible to resell software licenses?

The used software licenses can be purchased and sold within the EU and Switzerland, according to the orientation assumed by the local law, in line with the principles adopted by the European Community.

What is the legal situation in Switzerland?
The software used can be bought and sold in Switzerland, subject to the consent of the software. Article 12, paragraph 2 of the Federal Law of Switzerland on Copyright and Neighboring Rights (Law on copyright, LDA): “If the author (…) has sold a computer program or it has approved the sale, this can be used or resold.Cyrill Rigamonti, a law professor at the University of Bern, says in an article about the legitimacy of the software reseller in Switzerland:” the Swiss law on copyright admits commercialization of used software.” In addition, the consent of the producer is definitely confirmed with the first sale.

Still have questions on purchasing and selling used software?

Contact us without hesitation, we will answer your questions and clarify any doubts.