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German court ruled that e-books need to be distinguished from software - no exhaustion

Submitted by jboyd on Wed, 07/31/2013 - 11:36

According to the German Regional Court of Bielefeld, the Court of Justice of the European Union's (CJEU's) UsedSoft v Oracle decision in Case C-128/11 is not applicable to the resale of other digital content such as downloadable e-books and audiobooks. The German court held that, because of the nature of the EU Software Directive 2009/24/EC as lex specialis to the EU Information Society Directive 2001/29/EC, the reasoning in UsedSoft could not be applied to other subject-matter. In this vein, the Landgericht Bielefeld concluded that the Information Society Directive does not permit application of the principle of exhaustion to works in non-analogue form.

In the recent Capital Records v ReDigi ruling on digital music, the U.S. District Court for the Southern District of New York ruled that ReDigi was not protected by the U.S. "first sale" doctrine, which allows consumers to buy and sell copyrighted works after the creators first put them into the marketplace. It distinguished the case from the earlier U.S. Supreme Court decision in Kirtsaeng v John Wiley & Sons ( that decided that U.S. rightholders cannot prevent products they purchase elsewhere from being resold in the U.S.

A copy of the German decision (Case No 4 O 191/11, Landgericht (German Regional Court) Bielefeld, 5 March 2013), in German, is here: (attached)