The Theory of Functional Equivalence and Digital Exhaustion – An Almost Concurring Opinion to the UsedSoft v. Oracle Decision
Gellén Klára - Görög Márta (Szerk.): Lege et Fide: Ünnepi tanulmányok Szabó Imre 65. születésnapjára, A Pólay Elemér Alapítvány Könyvtára, 65., Iurisperitus Bt., Szeged, 2016: p. 387-400.
13 Pages Posted: 17 Sep 2014 Last revised: 14 Nov 2016
Date Written: September 16, 2014
It is cliché, but it is a matter of fact at the same time that legislators and rightholders face significant challenges due to the constant development of technology. The history of the internet is colored by hundreds of vital debates that are due to the unauthorized use of copyrighted contents. The principle of exhaustion is neither an exception. The launch of online stores offering used software, sound recordings, audio books or e-books has necessarily raised new questions. The most important one is whether the doctrine of exhaustion that has originally been developed to cover the resale of physical/tangible objects shall be applicable to contents sold in digital format via the internet. The present article aims to introduce a pioneer decision of the Court of Justice of the European Union (CJEU) handed over in the UsedSoft case. The preliminary ruling will be analyzed through four distinct questions, with a special focus on the applicability of the exhaustion or first-sale doctrine in the online world. These questions are related to the licence versus sale dichotomy; the so-called umbrella solution; the "new copy theory", migration of digital copies via the internet, and the forward-and-delete technology; and the issues of lex specialis and the theory of functional equivalence.
Keywords: exhaustion, CJEU, Oracle v. UsedSoft, WCT, functional equivalence, forward-and-delete, right of distribution
JEL Classification: K00, K11, K19, K10, K33
Suggested Citation: Suggested Citation