Software authority warns of ‘illegal’ second-hand software


by Duncan MacRae| 07 February 2014

Can second-hand software ever be completely infringement risk free?

Legal issues relating to second-hand software (SHS) have been attracting attention for some time now, and it is difficult to anticipate where the law will finally settle.

Federation Against Software Theft (FAST) recently had to terminate the membership of Discount Licensing - the first time a membership has been revoked in its history. Its removal came following the news that Discount Licensing had infringed Microsoft's copyright.

Julian Heathcote-Hobbins, general counsel, FAST, said: "Practical challenges, the European Court's view and the conflicting interpretation taken by the US courts on the same issues creates uncertainty. FAST believes that current case law is insufficient to be able to categorically state that certain SHS transactions are or are not legal."

"FAST is yet to come across any appropriately qualified legal advisor that can give a 100% assurance that second hand software is completely infringement risk free. This case affirms that undoubtedly the position remains 'buyer beware' and one should think very carefully and seek sound legal advice from a specialist before jumping in feet first.

"We have always been committed to the lawful use of business software, it is after all the reason we are here. But we have been concerned, and believe, that Discount Licensing's assurances that software vendors will not take legal action against organisations in regard to second hand software cannot be guaranteed.

"We stand fully alongside any of our members' desire to protect their copyright which underpins R&D investment in program development and believe there are also wider issues at stake, most notably the need for legal certainty of end users together with potential damage to confidence of the UK reseller channel."

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