Last week’s European court ruling that Oracle may not oppose Usedsoft’s resale of licenses for Oracle software
could provoke a shake-up of the mobile apps market.
But this doesn’t mean that customers will suddenly find a market for their old apps. On the contrary, developers
are likely to start tightening any loopholes that could lead to such a second-hand market, according to
UsedSoft buys and sells used software. Oracle sued UsedSoft in Germany when the company offered “pre-used”
Oracle software licenses online in October 2005. The case was eventually referred to the European Court of Justice,
which found that the exclusive right of distribution of a copy of a computer program covered by a license is
exhausted on its first sale. This means that developers lose the ability to prohibit any second hand sale.
Oracle argued that the software was a free download and that the license was the paid-for element, but the ECJ
rejected this, meaning that software no longer has to be in a physical form such as a CD or DVD in order for it to
have resale value. This ruling sets a precedent for trading of used software licenses throughout the European Union
and could potentially affect mobile applications.
“At its simplest level, an app is a computer program, and if that app can be accessed and used in perpetuity
without a time limit, developers couldn’t in principle prevent the subsequent sale of that software,” said
Indradeep Bhattacharya, a lawyer with legal firm Pinsent Masons.
However, he pointed out that the court ruling was very specific in defining the terms of a sale that apply. “The
court only refers to software that is sold for continuous use. So it wouldn’t apply to software that only allows
access for a limited time,” Bhattacharya continued. “As a result, we may very well see a change in the way apps or
games are marketed, possibly through cloud networks or where access is limited to a set length of time.”
He added that we could likely see a surge in sales of software as a service as developers attempt to better
protect their products. Of course, currently there is no technical way to sell on apps for Android or iOS, but
Bhattacharya said we may still notice a change in the way apps stores are structured.
For the moment, however, it seems that game and ebook publishers will have no cause for concern. As Ray Wang,
principal analyst at Constellation Research, pointed out, “Content seems to be excluded from this ruling.” He said
that it will be interesting to see how the U.S. courts deal with the used software issue, but said that most games
producers are already marketing their products as content rather than software.
Because there are separate rights of distribution and rights of reproduction in E.U. law, there was a shift from
providing software in physical form to website downloads as vendors tried to secure their market. What we are
likely to see now is a similar shift away from providing software per se, to providing software as a service. In
short, the ruling may prove a game changer in terms of how software is sold and marketed, but won’t result in a new
market that will substantially benefit consumers, Bhattacharya said.
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