UsedSoft and the Big Bang Theory: Is the e-Exhaustion Meteor about to Strike?

AuthorEmma Linklater
PositionDoctoral Researcher at the European University Institute, Florence
Pages12-22
2014
Emma Linklater
12
1
UsedSoft and the Big Bang Theory: Is the
e-Exhaustion Meteor about to Strike?
by Emma Linklater, Doctoral Researcher at the European University Institute, Florence
© 2014 Emma Linklater
Everybody may disseminate this ar ticle by electroni c means and make it available for downl oad under the terms and
conditions of the Digita l Peer Publishing Licence (DPPL). A copy of the license text may be obtaine d at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8 .
Recommended citation: Emma Linklater, UsedSof t and the Big Bang Theory: Is the e-Ex haustion Meteor about to Strike?, 5
(2014) JIPITEC 12, para 1
Keywords: UsedSoft, CJEU, Exhaustion, WCT, Copyright Directive, ReDigi
A. Introduction
1
When faced with an appeal on a point of law by UsedSoft
against a regional court order to the effect that
UsedSoft cease marketing of ‘used’ software licences
for Oracle products, the German Bundesgerichtshof
referred three questions to the CJEU.1 The questions
referred concerned the meaning of the term ‘lawful
acquirer’ as was contained in Article 5(1) of the
Computer Program Directive (CPD).
2
(Question 1),
whether the distribution right is exhausted within

acquirer downloads a copy of the program from the
Internet (Question 2), and, if the distribution right

whether a second acquirer of the now ‘used’ licence
can become a ‘lawful acquirer’, again within the
meaning of Article 5(1) CPD (Question 3).
2
To the second question – agreeing with the Advocate

distribution right could indeed by exhausted, so long
as the transaction was one of a ‘sale’. In response
  
AG, it found that a second acquirer could become a
lawful acquirer, and thus did not need authorisation
Abstract: Since the UsedSoft ruling of the
CJEU in 2012, there has been the distinct feeling that
– like the big bang - UsedSoft signals the start of a
new beginning. As we enter this brave new world, the
Copyright Directive will be read anew: misalignments
in the treatment of physical and digital content
will be resolved; accessibility and affordability for
consumers will be heightened; and lock-in will be
reduced as e-exhaustion takes hold. With UsedSoft
as a precedent, the Court can do nothing but keep
expanding its own ruling. For big bang theorists, it is
only a matter of time until the digital first sale meteor
strikes non-software downloads also. This paper
looks at whether the UsedSoft ruling could indeed be
the beginning of a wider doctrine of e-exhaustion, or if
it is simply a one-shot comet restrained by provisions
of the Computer Program Directive on which it was
based. Fighting the latter corner, we have the strict
word of the law; in the UsedSoft ruling, the Court
appears to willingly bypass the international legal
framework of the WCT. As far as expansion goes,
the Copyright Directive was conceived specifically
to implement the WCT, thus the legislative intent is
clear. The Court would not, surely, invoke its modicum
of creativity there also.… With perhaps undue haste
in a digital market of many unknowns, it seems this
might well be the case. Provoking the big bang theory
of e-exhaustion, the UsedSoft ruling can be read as
distinctly purposive, but rather than having copyright
norms in mind, the standard for the Court is the same
free movement rules that underpin the exhaustion
doctrine in the physical world. With an endowed sense
of principled equivalence, the Court clearly wishes the
tangible and intangible rules to be aligned. Against the
backdrop of the European internal market, perhaps
few legislative instruments would staunchly stand
in its way. With firm objectives in mind, the UsedSoft
ruling could be a rather disruptive meteor indeed.

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