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The software business in transit: Will exhaustion and defining sale or licence soon be irrelevant?
Uppsala University, Disciplinary Domain of Humanities and Social Sciences, Faculty of Law, Department of Law. (Akademin för Immaterial-, Marknadsförings- & Konkurrensrätt (IMK))
2014 (English)In: IMC Paper, no 1Article in journal (Refereed) Published
Abstract [en]

Consumption of copyright-protected works, such as software, games, music, video, television broadcasts and newspapers has reshaped in the digital environment. The development of Internet and online distribution has, at least within the European Union (EU), set the traditional principle of exhaustion aside when software is delivered online. The Court of Justice of the European Union has held in UsedSoft v. Oracle (2011) that, under certain conditions, a licensed computer program downloaded from the Internet shall be considered to be sold and exhausts the rightholder’s distribution right. This means that the rightholder cannot prevent the buyer to resell a copy of a computer program bought online, which is the same situation when software is sold as a hard copy. Meanwhile in the United States (US) the Court of Appeal for the Ninth Circuit has held in MDY v. Blizzard (2010) that online software should be considered licensed and not sold. Furthermore, in the US the situation is the same when software is distributed on a tangible medium according to the Court of Appeal for the Ninth Circuit in Vernor v. Autodesk (2010). Consequently the starting point in the US is different than in the EU regarding the concept of exhaustion, both with respect to digitally delivered software and software delivered on tangible media.

Place, publisher, year, edition, pages
Uppsala, 2014. no 1
Keyword [en]
Software, Copyright Exhaustion, EU, US
National Category
URN: urn:nbn:se:uu:diva-223647OAI: oai:DiVA.org:uu-223647DiVA: diva2:713531
Programalster i upphovsrätten

This paper was presented at the ALAI 2013 conference, organised by CECOLDA in Cartagena, Colombia in September 2013, and will be published in due course in the conference proceedings.

Available from: 2014-04-23 Created: 2014-04-23 Last updated: 2014-04-23Bibliographically approved

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