Resale of second-hand software
Produced in partnership with Robin Fry of Memery Crystal
Resale of second-hand software

The following TMT practice note produced in partnership with Robin Fry of Memery Crystal provides comprehensive and up to date legal information covering:

  • Resale of second-hand software
  • Brexit
  • Second-hand software market
  • Why resale of software is relevant
  • The legal issues
  • The UsedSoft case
  • UsedSoft—conditions for transfer
  • Post-UsedSoft caselaw
  • Software as a service (SaaS)
  • The challenge for the software suppliers
  • More...

Resale of second-hand software

IP COMPLETION DAY: 11pm (GMT) on 31 December 2020 marks the end of the Brexit transition/implementation period entered into following the UK’s withdrawal from the EU. At this point in time (referred to in UK law as ‘IP completion day’), key transitional arrangements come to an end and significant changes begin to take effect across the UK’s legal regime. This document contains guidance on subjects impacted by these changes. Before continuing your research, see Practice Note: What does IP completion day mean for TMT?

When commercial software is acquired from a software supplier, a non-exclusive licence is usually all that is obtained. The supplier retains copyright ownership in the code—they permit a transfer or download of the code to the buyer, and, in exchange for a fee, the buyer takes a licence subject to often extensive terms and conditions.

Although software is commonly referred to as being ‘bought’ or ‘sold’, the legal basis is (at least for commercial applications) that there is invariably no transfer of ownership. Only a limited right to use is being acquired.

This Practice Note considers the legal and commercial issues surrounding whether such licences can be ‘resold’, ie assigned to a new user.

Brexit

On 31 January 2020, the UK ceased to be an EU Member State and entered an implementation period, during which it continues to be subject to EU

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