Three Hundred Years Since the Statute of Anne, from 1709 to Cyberspace
Edited by Lionel Bently, Uma Suthersanen and Paul Torremans
Chapter 24: The Economic Perspective: Exhaustion in the Digital Age
Andreas Wiebe* 1 INTRODUCTION Today, there is a lot of talk about crisis. The crisis I will talk about today has been around for some time. It is the crisis of the exhaustion principle, the source of which lies in the way digital technology changed production and distribution of immaterial goods. This crisis will not go away within a year. Moreover, it brings up the question of whether the exhaustion principle still makes sense in the information age and if so in what specific form. 2 INTRODUCTORY CASE1 – SECONDHAND SOFTWARE AS AN EXAMPLE I would like to take a case as an example that has kept German courts quite busy over the last three years. It is about so-called ‘secondhand software’. The first licensees of software download the software from the internet or receive it on a master copy that can be accessed in a local network in the company. The underlying standard contracts exclude the transfer of the software or the license without consent of the right holder. Now, sometimes it happens that the licensee does not need the software any more, be it because of new software or even bankruptcy. Then he may be interested in reselling the software. This is the business of an intermediary who buys the software from the first licensee and resells it to a second licensee with a rebate of 30–50 per cent. No physical copy is part of the * Prof. Dr. Andreas Wiebe, LL.M. University of Göttingen, Germany. Chair for...
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