Legality of Certified Pre-Owned Software

Legislation

TThe purchase and use of pre-owned software are legal within the European Union, as established by the European Court of Justice (ECJ) ruling in July 2012 (Case C-128/11) and the European Software Directive (2009/24/EC).

Legal Framework

Article 4(2) of Directive 2009/24/EC:
This article outlines the “principle of exhaustion,” which states:
“The first sale in the Community of a copy of a program by the right holder or with his consent shall exhaust the distribution right within the Community of that copy, with the exception of the right to control further rental of the program or a copy thereof.”

In its July 2012 ruling, the ECJ extended this principle to include intangible (digital) software, such as those acquired under Volume License Agreements from vendors like Microsoft. This means that perpetual, fully paid software licenses can legally be resold, regardless of restrictions stated in the original agreements.

Requirements for Pre-Owned Software Licenses

To ensure legality, pre-owned software licenses must meet the following conditions:

1. Consent from the Copyright Holder:
   The initial purchaser must have acquired the license with the copyright holder’s consent.
2. EU Origin:
   The license must have been originally purchased in a European Union country (the “original Country of Use”).
3. Ownership Documentation:
   Original documents must clearly identify the first purchaser and the specifics of what was purchased.
4. Indefinite Licenses:
   The license must grant perpetual use to the original purchaser.
5. Fully Paid Licenses:
   Both the original and new purchasers must fully pay for the licenses—leasing is not permitted.
6. Software Removal:
   The previous owner must uninstall and delete the software before the transfer.
7. No Split Licenses:
   Licenses cannot be split or partially transferred. For example, bundled packages or office suites must remain intact. This rule does not apply to Multiple Activation Key (MAK) volume licenses, where individual activations can be sold to different users.
8. No Third-Party Claims:
   The license must not be subject to any third-party rights.
9. No Manufacturer Registration:
   The new purchaser does not need to register the software with the manufacturer.

Procdkey Compliance

Procdkey adheres to all legal requirements for license transfers, ensuring customers receive all necessary documentation for a secure and legal purchase.

Software Audits

If the original contract included an obligation for software audits, this obligation ends once the license is transferred to a new owner. Manufacturers cannot conduct audits without your consent unless there is suspicion of software piracy and a court order is obtained. In case of an audit:

• Present the documentation provided by Procdkey.
• If auditors require additional information about the previous owner, Procdkey can provide the necessary details upon request.

Caution on Documentation

Purchasing pre-owned software without proper documentation does not constitute a legal purchase. Be cautious of websites claiming to offer certified pre-owned software without providing mandatory documentation. Always verify the legitimacy of the seller and the documentation to avoid potential legal issues.