The ownership status of digital content – whether it be music on iTunes or eBooks on Kindles – is increasingly on the general public’s mind. For those in European legal and technical circles, such questions rose to the forefront of consideration in July 2012, when the Grand Chamber of the Court of Justice of the European Union issued its decision on UsedSoft GmbH v Oracle International Corp. The decision declared that those who download large-scale, enterprise-wide commercial software in fact own it, and thus its author’s distribution right under the Software Directive is “exhausted”. Many commentators welcomed the decision as the definitive establishment of a second-hand trade in download-only software. The decision and its implications are potentially pivotal for the future of the second-hand trade in eBooks, computer games and other digital content. This paper seeks to demonstrate that although perhaps not explicitly intended by the Court, the case is a clear example of the application of the continuing discussion of “online/offline equivalence”. It is argued that, on this basis, it is clear that the Court was attempting to foster the legal framework necessary for such a second-hand market in digital content of any variety. However, the paper concludes speculatively, questioning the long term relevance of the decision. It is argued that if the likes of cloud-based distribution services such as Spotify become the norm, the existence of the very concept of second-hand may fade.
