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- Title
Revisiting UsedSoft v. Oracle: Is Software Property and Can It Be Sold?
- Authors
Moon, Ken
- Abstract
This article questions the CJEU’s reasoning in UsedSoft (C-128/11) that Oracle’s distribution right had been exhausted when the first acquirer of a copy of Oracle’s software had downloaded it. This criticism is primarily directed to the CJEU’s finding that Oracle’s software licence was a sales contract. It is argued that the CJEU’s definition of a sale for the purposes of European lawwas wrong to include transfer of ownership in intangible property such as computer programs. This was in contradiction both to the law in most European states and to the then Proposed Common European Sales Law. This state of affairs may have been avoided if the Software Directive 2009/24 had been amended to include the new ‘internet age’ right of communication established by the WIPO Copyright Treaty 1996 which applied to downloads. After a brief introduction (I.), the article first explores the historical background to software licenses (II.) and examines the relationship between downloading and the rights of distribution/communication (III.).After a brief reminder on the nature of software (IV.), the crucial question of exhaustion by first sale is discussed (V.) which leads to the conclusion that under the current global legal frameworks software cannot be sold (VI.).
- Subjects
DISTRIBUTION management; ORACLE software; ORACLE Corp.; USEDSOFT Schweiz AG; SOFTWARE license agreements; INTANGIBLE property
- Publication
Computer Law Review International, 2017, Vol 18, Issue 4, p113
- ISSN
1610-7608
- Publication type
Article
- DOI
10.9785/cri-2017-0405