The sale of product keys for software on the Internet is already possible in many online stores.
In addition to the invoice, the customer receives both the serial number and a link to download the software.
As the Regional Court of Berlin has now ruled, the isolated sale of the product key may be inadmissible (judgment of 11.03.2014, Ref.: 16 O 73/13): The plaintiff operated an online store in which he also sold a well-known computer game.
The product key for the game could be purchased there for a fee.
With the product key, the game could be downloaded from the relevant platforms such as Steam.
Steam, for example.
Key and software were originally connected
The seller claimed that he received the product keys from contractual partners in the United Kingdom or Poland.
These were codes that had been added to the physical data carriers available there.
His contractual partners sent him these product keys by e-mail.
They destroyed the remaining components of the physical version and the electronic copy of the product key in the form of a scanned/photographed image.
He considered his actions to be lawful in view of the case law of the ECJ on used software (judgment of 03.07.2012, ref.: C-128/11 – UsedSoft).
Exhaustion principle does not apply to keyselling
In its decision, the court held that the plaintiff had infringed the right of reproduction under copyright law with its isolated keyselling.
The separation of product key (serial number, code number) and data carrier was not subject to the principle of exhaustion:
“The plaintiff wrongly invokes exhaustion of the reproduction right. From the outset, exhaustion can only apply to the product that has been put on the market in the European Union with the consent of the right holder.”
Regarding the alleged applicability of the ECJ decision, the court stated:
“On the one hand, however, the decision was issued on a pure computer program, which the ECJ exclusively subordinated to the Software Directive 2009/24/EC as the more specific regulation compared to the InfoSoc Directive 2001/29/EC. […] On the other hand, the decision concerned a situation in which the rights holder himself only placed the product on the market via a download, i.e. in non-physical form.”
Both aspects were different in the present case, so that the original warning was justified and the action had to be dismissed.
Have the sale of product keys legally checked
In light of the above, it is clear that the much-discussed decision of the ECJ is by no means a carte blanche for the isolated distribution of product keys.
Rather, in addition to the source of the distributed product keys, key sellers should also plan the respective distribution channel and the form in which the software is made available well in advance.