SAP can't restrict software resales, German court rules

The ERP giant's terms and conditions are called anti-competitive

SAP can no longer require customers to get written permission before they resell SAP software to third parties in Germany, the Hamburg Regional Court ruled on Friday.

The court said that two clauses in SAP's terms and conditions are anti-competitive, said Ruth Hütteroth, spokeswoman for the court. Those clauses required written permission for resale and for the purchaser of used software to ask SAP for permission before using the license more extensively than the original purchaser. The ruling means that SAP software can now be resold in Germany without the vendor's permission, Hütteroth said Monday.

SAP can appeal the ruling but has not yet done so, Hütteroth said. SAP is still evaluating the ruling, a company spokesman said.

SAP was sued by Susensoftware, a German reseller of pre-owned SAP and Microsoft software licenses. The company brought the case after SAP blocked a deal worth about €30,000 (US$41,400), Susensoft director Alex Susen said on Monday.

Reselling used software should be like reselling cars, Susen said. People who want to sell their car don't have to ask for permission from the manufacturer before they do so, he said.

"But SAP says: I sell you software for €1 million but at the end of the day you are not the owner. And you have to ask for permission if you like to sell it and I have the right to say no if I don't like the new owner. That is not the correct way to work with clients," said Susen.

Susen hopes the Hamburg ruling will result in more freedom for German companies that want to buy or sell current versions of SAP software, he said.

The German ruling follows a decision by the Europe's highest court, the European Court of Justice (ECJ) that ruled in July 2012 that the trading of used software licenses is legal and that the author of such software cannot oppose any resale. The exclusive right of distribution of a copy of a computer program covered by such a licence is exhausted on its first sale, the court ruled. The ruling applies to downloaded software as well as software bought on a CD or DVD.

After an ECJ ruling, national courts in the European Union should make rulings in line with the ECJ decision when a similar issue is raised.

Loek is Amsterdam Correspondent and covers online privacy, intellectual property, open-source and online payment issues for the IDG News Service. Follow him on Twitter at @loekessers or email tips and comments to loek_essers@idg.com

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