Short answer
Sometimes — and software is the exception rather than the rule in EU digital-resale law.
The starting point is the exhaustion rule in the Software Directive:
"The first sale in the Community of a copy of a program by the rightholder or with his consent shall exhaust the distribution right within the Community of that copy, with the exception of the right to control further rental of the program or a copy thereof." —
In UsedSoft (C-128/11) the Court of Justice held that this covers downloaded copies, not only physical media, where the rightholder has made the copy available for download and granted a right to use it for an unlimited period against payment of a fee corresponding to the economic value of the copy. That combination is a sale, whatever the agreement calls it, and the distribution right in that copy is exhausted.
The second acquirer then becomes a "lawful acquirer" entitled under Article 5(1) to make the reproduction necessary to use the program.
But the conditions are demanding, and four situations fall outside:
- Subscriptions and time-limited licences — no unlimited period, so no sale, so no exhaustion.
- Splitting a volume licence — the seller cannot divide a block licence and sell the surplus seats.
- Reselling a back-up copy — not permitted.
- Non-software digital content — e-books, music and film follow a different rule entirely.
The conditions from UsedSoft
An unlimited period. Where the licence is for a fixed term, there is no transfer of ownership of the copy and the exhaustion analysis does not begin. This is what excludes most modern subscription and SaaS models.
A fee corresponding to the economic value. The rightholder must have obtained remuneration corresponding to the economic value of the copy. A nominal or evaluation licence is not a sale.
The original copy must be made unusable. The first acquirer must render its own copy unusable at the time of resale. Retaining a working installation while selling the licence infringes the reproduction right, because the reseller is no longer entitled to use it. This is a practical evidential burden on both seller and buyer.
The copy, not the licence in the abstract. Exhaustion attaches to the specific copy whose distribution right has been exhausted, including corrections and updates covered by a maintenance agreement in force with the rightholder at the time of the original sale.
No splitting. The Court addressed a market in which licences were acquired for more users than the original purchaser required. A block licence cannot be divided so that the unused seats are sold on; exhaustion does not authorise dividing an indivisible licence into parts.
What the reseller and the buyer each need
For the seller:
- Evidence that the original acquisition was a sale for an unlimited period at a fee reflecting economic value.
- A verifiable process for making its own copy unusable — uninstallation, deletion of media and images, deactivation.
- Records of the original purchase, including any maintenance agreement in force at the time.
- Confirmation that the licence is not a volume licence being split.
For the buyer:
- Proof of the chain: the original sale terms, and evidence that each prior holder ceased use.
- Awareness that a defective chain leaves the buyer making unauthorised reproductions.
In practice, the evidential burden is what limits this market rather than the legal principle.
Back-up copies cannot be resold
Ranks and Vasiļevičs (C-166/15) addressed the situation where the original physical medium had been damaged, destroyed or lost, and the possessor sought to sell a back-up copy.
The back-up exception in Article 5(2) permits the making of a back-up copy "by a person having a right to use the computer program … in so far as it is necessary for that use". That is a use-preservation right. It does not authorise placing the back-up copy on the market as a substitute for the original.
So a business that has lost the original medium cannot substitute its back-up in a resale, even where the underlying licence would otherwise have been resaleable.
Other digital content follows a different rule
This is where the analysis most often goes wrong.
In Tom Kabinet (C-263/18) the Court considered the supply of e-books by download for permanent use. It addressed whether that constituted distribution — where exhaustion could apply — or communication to the public under Article 3 of the InfoSoc Directive, where Article 3(3) provides that the right is not exhausted by any act of communication or making available.
The result is a split regime. Computer programs are governed by the Software Directive as a lex specialis, with UsedSoft exhaustion for downloaded copies. Other digital works follow the InfoSoc framework, where the making-available right is not exhausted.
Practical consequence: a used-software market has a legal basis in the EU; a used-e-book or used-music-download market does not have the equivalent basis.
Where the boundary is now contested
SaaS is not within it. Where the customer never receives a copy and accesses software running on the provider's infrastructure, there is no copy whose distribution right could be exhausted. This is a service, not a sale.
Perpetual licences with mandatory subscriptions — for example a perpetual base licence requiring an active subscription for continued functionality — raise genuine questions about whether the arrangement is a sale for an unlimited period.
Cloud-delivered hybrids where a local component is installed but the product depends on hosted services need the components analysed separately.
Account-bound licences where the software is tied to an online account and cannot be transferred technically present a practical barrier even where the legal analysis permits transfer.
Contractual restrictions
Non-transferability clauses are standard, and UsedSoft establishes that such a clause cannot prevent exhaustion once the conditions of a sale are met — the distribution right in that copy is exhausted as a matter of law.
But the Software Directive's nullity provision is narrower than is sometimes assumed:
"Any contractual provisions contrary to Article 6 or to the exceptions provided for in Article 5(2) and (3) shall be null and void." —
Article 5(1) is not in that list, and it applies "in the absence of specific contractual provisions". The interaction between contractual restrictions and the lawful acquirer's Article 5(1) rights is therefore more nuanced than a simple "restrictions are void" reading suggests. A contractual restriction may also sound in damages for breach even where it cannot defeat exhaustion.
Operational checklist
- Confirm the original acquisition was for an unlimited period at a fee reflecting economic value.
- Exclude subscriptions, term licences and pure SaaS.
- Do not split volume or block licences.
- Make the original copy genuinely unusable and document it.
- Do not resell back-up copies.
- Retain the original purchase documentation and any maintenance agreement.
- For buyers, obtain the full chain of title and evidence of prior deactivation.
- Treat non-software digital content as outside this framework.
- Check whether account binding makes transfer technically impossible in practice.
Conclusion
Reselling a used downloadable software licence in the EU is lawful in principle, and UsedSoft is the reason software occupies a privileged position that e-books and music downloads do not. The distribution right in a copy sold for an unlimited period at a proper price is exhausted, and the second acquirer may make the reproduction necessary to use it.
The practical constraints are what matter. The original holder must genuinely cease use, volume licences cannot be split, back-up copies cannot substitute for originals, and subscription models fall outside the analysis entirely. For a business holding genuinely perpetual, individually licensed software, resale is a real option — provided the paperwork supports it.
For the wider picture on digital resale, linking and streaming, see our article on .
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.