What does "first sale doctrine" mean?

§ 69c no. 3 p. 2 of the German Copyright Act: "Where a copy of a computer program is put into circulation by way of sale in the territory of the European Communities or of another Contracting State of the Convention Concerning the European Economic Area with the consent of the right holder, the distribution right in respect of that copy shall be terminated, with the exception of the rental right."

Explanation

Regarding the resale of used software, users are often insecure. Mostly, users fear injunction or compensation claims from the manufacturer. According to German copyright law, the manufacturer abandons his right to control or restrict the transfer of the respective sold program copy with the first sale of his products. Which means that he is in no way entitled to prohibit the further distribution of a once sold program copy. If the manufacturer’s right in the software terminates with the first sale, the second purchaser may become legal owner, and the manufacturer has no copyright injunction or compensation claims against the customer. The first sale doctrine is compelling law which cannot be waved contractually. This means: Contrary license agreements of the manufacturer become invalid at the time of termination.

We differentiate between national and international termination: National termination means that if the software was put into circulation, for example in Germany, it may be sold to a new owner within Germany, because according to German law, the purchaser cannot be prosecuted by the licensor.

International termination means that if the software was put into circulation, for example in Germany, it may be sold to Europe (see above), for example the Netherlands, because according to European law, the purchaser cannot be prosecuted by the licensor. Licenses may be transferred within a company from one branch office to the other, as long as the “parent company” holding owns more than 51% of the shares. I do not know the applicable laws because this fact is beyond dispute and no longer discussed.

But what about non-EU-countries? If an office branch acquires licenses in Europe and transfers them internally, we do not see any restrictions on the SAP-sector. If the licenses are purchased directly, one could check if the licensor could appeal to the national law in order to prohibit the use. An international termination, however, is rather the exception (see Switzerland) and may lead to restrictions for the individual.

There are further issues, like "data medium available?" und "Download supply", in the SAP-sector; however, they can be neglected.

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