In a decision dated 27.05.2016, the Higher Regional Court of Frankfurt am Main (case reference: 6 W 42/16) ruled that the sale of a software product key that has not yet been activated is lawful. With this decision, the OLG follows the case law of the European Court of Justice on used software. According to the OLG, the product key sold serves to create a copy, but not to pass on an existing copy.
The purchase of a non-activated product key
The decision of the OLG is based on the following case: Mr. A purchased a product key for a computer program and downloaded it – with the help of the product key – from the manufacturer’s homepage. The product key was not activated by the download alone. He then created a copy of the program and sold it together with the matching product key, which had not yet been activated.
Passing on a program copy is not a copyright infringement
The question now was whether the purchaser of the software copy and the key had infringed copyright. According to the Higher Regional Court of Frankfurt am Main, a copyright infringement only exists if the author of the program refuses to give his consent to the reproduction. However, this could not be assumed per se in the present case.
With this decision, the OLG follows on from the case law of the ECJ from July 3, 2012 (case reference: C-128/11). Even the resale of an already used software license – which is valid for life – is permissible if the user’s own copy of the software is rendered unusable.
Sales offer of non-activated product key with software copy is not misleading
As a result, the present case is not misleading in the sense of unfair competition law if the purchaser buys a product key from a third party with which he can download software from the Internet. Such misrepresentation would only exist if the author of the software did not give his consent to the production of a copy. However, this cannot generally be assumed if the associated product key has not yet been activated.
The decision of the Higher Regional Court of Frankfurt a.M. represents a further relevant step in the case law on the resale of software licenses. Although the decision cannot be appealed, it remains to be seen what position other higher regional courts, or even the Federal Court of Justice, will take on the subject. When purchasing product keys that have not yet been activated, we always recommend checking that they have not yet been activated before purchasing them. In this way, copyright infringements in connection with the download of the software can be excluded as far as possible.