UsedSoft v Oracle: the ECJ quietly reveals a new European property right in “bits & bytes”

Abstract

With its judgment of 3 July 2012 in UsedSoft v Oracle[1] the Court of Justice of the European Union (“ECJ”) made it clear that exhaustion of intellectual property rights also applies to the sale of intangible goods like a copy of computer program. However, to achieve the end of the free movement of intangible goods, the Court had to come up with an inventive means: an autonomous Europe property right in “bits & bytes”. This may be justified to create a market for second hand software licences, but in doing so the Court manifests itself as the proverbial bull in a china shop, if it comes to respecting established principles of national property laws of the Member States. Every reason, therefore to take inventory of what the Court actually did do in UsedSoft v Oracle in respect of a property right in intangible goods.