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Tuesday, 24 April 2012

UsedSoft: "Would they have wiped their own? " Bot advises CJEU

This morning Advocate General Bot delivered his Opinion in the UsedSoft" dispute, Case C‑128/11 Axel W. Bierbach v Oracle International Corp. In this reference to the Court of Justice of the European Union (CJEU), the court was asked by the German Bundergerichtshof to rule on the following questions:
"Is the person who can rely on exhaustion of the right to distribute a copy of a computer program a 'lawful acquirer' within the meaning of Article 5(1) of Directive 2009/24 [on the legal protection of computer programs (Codified version)] 
UnusedSoft
If the reply to the first question is in the affirmative: is the right to distribute a copy of a computer program exhausted in accordance with the first half-sentence of Article 4(2) of Directive 2009/24 when the acquirer has made the copy with the rightholder's consent by downloading the program from the internet onto a data carrier? 
If the reply to the second question is also in the affirmative: can a person who has acquired a 'used' software licence for generating a program copy as 'lawful acquirer' under Article 5(1) and the first half-sentence of Article 4(2) of Directive 2009/24 also rely on exhaustion of the right to distribute the copy of the computer program made by the first acquirer with the rightholder's consent by downloading the program from the internet onto a data carrier if the first acquirer has erased his program copy or no longer uses it?".
The Advocate General's Opinion is not available in English, but this is what he says in French:
«1) L’article 4, paragraphe 2, de la directive 2009/24 ... doit être interprété en ce sens que le droit de distribution de la copie d’un programme d’ordinateur est épuisé si le titulaire du droit, qui a autorisé le téléchargement de cette copie sur un support informatique à partir d’Internet, a également conféré à titre onéreux un droit d’usage de ladite copie, sans limitation de temps. 
En effet, constitue une vente, au sens de cette disposition, 
toute mise à disposition dans l’Union, sous quelque forme et par quelque moyen que ce soit, d’une copie d’un programme d’ordinateur en vue de son utilisation pendant une période illimitée et moyennant le paiement d’un prix forfaitaire. 
2) Les articles 4, paragraphe 2, et 5, paragraphe 1, de la directive 2009/24 doivent être interprétés en ce sens que, en cas de revente du droit d’usage de la copie d’un programme d’ordinateur, le second acquéreur ne peut se prévaloir de l’épuisement du droit de distribution de cette copie pour procéder à la reproduction du programme en créant une nouvelle copie, quand bien même le premier acquéreur aurait effacé la sienne ou ne l’utiliserait plus.»
According to a popular online translation service, this means:
"1) Article 4(2) ... must be interpreted as meaning that the right distribution of a copy of a computer program is exhausted if the right holder, who authorized the download of this copy on a computer from the Internet, has also given consideration to a right to use such copy, without time limitation. 
In fact, constitutes a sale within the meaning of this provision, any provision in the Union, in any form or by any means whatsoever, a copy of a computer program for use during an unlimited period and upon payment of a fixed price.   
2) Sections 4, paragraph 2, and 5, paragraph 1 of Directive 2009/24 should be interpreted as meaning that, when you sell the right to use the copy of a computer program, the second purchaser can not avail himself of exhaustion of distribution rights of the copy for any reproduction of the program by creating a new copy, even if the first purchaser would have wiped their own or would use it more".
The Kats think this sounds about right, but would be more confident if they knew precisely what the Advcocate General meant. They await the ruling with excitement and trepidation.

3 comments:

Anonymous said...

1) Article 4, paragraph 2, of Directive 2009/24 ... must be interpreted as meaning that the right to distribute a copie of a computer program is exhausted if the right owner, having authorised the download from the internet of this copy onto a computer storage medium, has also conferred, and for a fixed fee, a right to use said copy, without any limitations as to duration.
Indeed, a sale, within the meaning of this context, is the making available anywhere in the EU, in whatever form or by whatever means, of a copy of a computer program with a view to its use for an unlimited period and subsequent to payment of a fixed price.
2) Articles 4, paragraph 2, and 5, paragraph 1, of Directive 2009/24 must be interpreted as meaning, where a resale occurs of the right to use the copy of a computer program, tha the second acquirer can not prevail himself of the exhaustion of the right of distribution for this copy in order to reproduce the program by creating a new copy, even if the first acquirer had deleted his own or no longer uses it.

Francis Davey said...

But surely the second acquirer of the computer program has a right, under article 5(2) to create a back-up copy? If I sell the right to use a program living on my hard drive to a second acquirer and exhaustion really does operate, then they are entitled to create their own copy (a backup from mine) which they can then use if mine is deleted (which it will be).

Once you accept that 4(2) applies to this sort of situation, all sorts of things ought to become possible.

I'll be interested to see what the CJEU says.

Gareth said...

Francis, I believe the AG's answer to your 5(2) point would be that the second acquirer does not have a "right to use" the computer program because using it would involve reproduction, and since the second acquirer is not a "lawful acquirer" (in part because there is no contract between him and the rightholder - see para 98), the rightholder's authorisation would be required under 4(1)(a).

(I also wonder if "back-up" is wide enough to include "replacement", which I think would be a more accurate classification of the situation you describe.)

I'm not saying I agree with AG Bot's treatment of the licence point, though; mainly because I don't think paras 94-100 are at all clear.

I also can't help but think that all his policy arguments for a broad interpretation of "sale" fall away the moment he decides that a licence is needed to actually use the program!

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