The ruling of the European Court of Justice (ECJ) from July 3rd, 2012
On July 3rd, 2012, the European Court of Justice ruled that in principle, used software can be sold legally. It argued that the exhaustion of distribution rights applies if the manufacturer issues software copies on physical media such as DVDs or CD-ROMs, but also if they are distributed in an intangible form via download from a website along with the purchase of unlimited period usage rights. If used software is updated via the internet, the right to updates also extends to the subsequent acquirer. According to the ECJ ruling, the original acquirer is not allowed o keep any copies of the software in case of a sale. Should the original license contract include a provision to prohibit further transfer, this provision is void, according to the ECJ.
The ruling of the German Federal Court of Justice (BGH) from July 17th. 2013
As expected, the BGH fully confirmed the ECJ ruling form July 3rd, 2012. Therefore, the sale of used software is generally legal (excerpt):
The BGH ruling from December 11th, 2014
In December of 2014, the BGH ruled that it is permissible to split up volume licenses. This means: If the initial acquirer has purchased a license that allows several users to use the software, the subsequent acquirer can only claim exhaustion of the distribution right for that copy if the initial acquirer has rendered it unusable. However, if the initial acquirer has purchased a license that allows several copies of the software to be used, the subsequent acquirer can claim exhaustion of the distribution right for a number of those copies if the initial acquirer has rendered that number of copies unusable.
The decision of the Münster Procurement Chamber from March 4th, 2016
Here, it was once again confirmed that purchasers have nothing to fear from the manufacturer (Microsoft) regarding the purchase and use of used software. According to the Münster Procurement Chamber, actions for injunction or damages regarding the use of software under second-hand licenses are no longer objectively comprehensible based on the supreme court rulings of the ECJ and BGH. In addition, the BGH elaborated that there was no evidence of financial loss on the part of Microsoft.
Used licenses do not differ from the original licenses, and used software cannot be discerned from new software. Both the ECJ ruling and the decisions of the BGH are final.