Abstract
The legal nature of software agreements, in particular on the delivery of standard software, has become one of the most debated issues among software law experts in continental Europe. In particular, the tradability of software via online services raises legal questions for both software suppliers and customers. This paper provides a legal overview of approaches adopted by some EU Member States (Germany, France and England) and the legal framework in the United States. Further it analyses the characteristics of software, principally with a view to copyright law in comparison to patent law. The authors conclude that the ECJ’s UsedSoft v. Oracle decision confirms that agreements on the delivery of software have to be qualified as licence agreements – irrespective of whether online technologies or offline “sales” apply. The paper further reflects on the decision’s impact on cloud computing as well as on contracts related to other copyright-protected digital content.
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