Is it legal to buy and sell used software?

The sale of used professional licenses is a relatively recent activity, which is growing significantly in a context where the production and consumption modes of the ICT market need to be rethought. The possibility of buying software with resale rights is popular among many SMEs and large groups. Thanks to this secondary market, they have greater technological and budgetary control over their software and consequently hardware assets. They also reduce the risks of non-compliance of their assets at a lower cost and benefit from great flexibility. But is the sale and purchase of used licenses legal? The answer is yes, and this market for software with resale rights also benefits from a solid European legal foundation.  

What the law says 

Following the dispute between Oracle and UsedSoft regarding the resale of Oracle software licenses by the latter, the European Court of Justice (ECJ) confirmed in 2012 the consideration of the software license as a business asset. It is therefore an intangible asset that can be transferred by the company. The theory of the exhaustion of rights reinforces these provisions by establishing that the right to control an asset incorporating intellectual property rights (copyrights) is exhausted upon the first sale. By reselling software purchased from a publisher, the company legally transfers its right of use and the ownership of the license agreement.    

Specific clauses  

For the company to be able to resell a license in compliance with European legislation transcribed into French law, it must be that:

• The software was purchased and resold within the European territory.
• The software license is lawful.
• The software was purchased for an unlimited duration.
• The software is uninstalled from the seller's servers and client workstations.
• The software is sold in its original configuration (for example, a bundle cannot be split for sale).

It is allowed to sell on the secondary market of software with resale rights OEM licenses with included hardware, physical licenses… However, it is prohibited to sell software licenses that are rented, subscriptions to cloud licenses (SaaS), and service contracts attached to software licenses. 

Pitfalls to avoid

Software with resale rights represents a high-potential market, and many actors, more or less scrupulous, can take advantage of this opportunity. For the transaction to comply with the legislation and for the buyer to be in full possession of the rights associated with the used license purchased, it is imperative that they select a trusted third party. This ensures the legality of the used licenses, unlike the broker who is less concerned with the compliance of the licenses sold on the secondary market of software with resale rights.

Secure your software assets with Softcorner 

B2B Softcorner, the European leader in the sale of used software licenses, has set up a secure process and unique tools for direct connection between buyer and seller who will conduct their negotiations without intermediaries on its platform. As a trusted third party, Softcorner secures your transactions and guarantees the compliance of your software with resale rights. With more than 100 million euros of complete and verified multi-publisher licenses for sale, the Softcorner platform has naturally established itself in this innovative European market. Its original positioning, strong guarantees provided to both sellers and buyers, and the provision of agile and efficient tools have immediately gained the support of large account buyers and sellers, mid-sized companies (ETI), and SMEs.

With regard to the buyer, Softcorner ensures the availability of the licenses for sale and the documents accompanying them. It verifies their compliance with legal provisions related to the sale of used licenses, and the uninstallation and cessation of use of the licenses sold. The amounts paid to acquire the licenses are held in escrow for about fifteen days. This allows time to install the software, deploy it to users, and validate its proper functioning.

With regard to the seller, Softcorner proceeds with as much rigor and professionalism. It guarantees the anonymity of the company and secures the payment of the licenses sold.