CJEU revisits UsedSoft: Is online supply of perpetual license software equivalent to selling merchandise?
In this post we analyze the judgment of the Court of Justice of the European Union (“CJEU”) in case C ‑ 410/19 (The Software Incubator), which concludes that computer software supplied electronically can be considered a “merchandise” and that, if accompanied by a perpetual license to use the copy of the downloaded software, it must be understood as a “sale of goods”, all within the meaning of Article 1 (2) of Directive 86/653, of December 18, 1986, on the coordination of the rights of the Member States with regard to independent commercial agents (Directive 86/653). Although the question resolved has little to do with the field of intellectual property, the famous “Usedsoft” case (case C-128/11) plays a decisive role in its resolution. That ruling had a great impact in the field of copyright because in it the CJEU examined whether in the field of computer programs it was possible to speak of distribution and, consequently, of the exhaustion of this right when their commercialization
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