What is 2nd Hand Software?

It is probably not natural for you to consider selling a car, bicycle, computer, mobile phone as second hand when it is old. So, have you considered the same for your software? Indeed, the software that came with the computer originally or the software purchased with the box (for example, the operating system) should not be different from our other products. There should be no fault in selling the old product of the product we bought as a consumer and after using it for a while, we will buy a new one. However, since it is not seen as commercially beneficial for some software companies, this behavior is prohibited by the contract made while selling the software to you. So, will this contract provision be considered valid before the law?

The Supreme Court gave a negative answer to this question in a recent decision. The Court of Cassation showed that it put a clear opinion and case law in this decision, as it did in a few decisions. In the decision, the full text of which will be given below, it is said in the conclusion part:

"The information and documents in the case file, the fact that there is no procedural and unlawful aspect in the discussion and evaluation of the evidence based on the justification of the court decision, that Article 16 of the OEM license agreement that prohibits the second-hand sale of computer software, FSEK article 5846. Since it is not valid against the imperative provision in article 23/2, all the objections of the defendant's attorney are not valid.”

As seen above, the Supreme Court has clearly expressed its opinion and the mandating FSEK art. He stated that there would be no violation in accordance with 23/2. Article 23/2 is as follows:

“The right to bring the copies reproduced abroad with the permission of the author to the country and to benefit from them by dissemination belongs exclusively to the owner of the work. Copies reproduced abroad cannot be imported in any way whatsoever without the permission of the owner of the work and/or the owner of the right to distribute it. Provided that the authority to rent and lend to the public remains with the owner of the work, the ownership of certain copies is transferred as a result of the right owner's use of the right to distribute them, and their resale after the first sale or distribution within the borders of the country does not violate the right to distribute given to the owner of the work.

In this decision, which was approved by the Court of Cassation, all allegations and defenses were examined in depth by the Istanbul 1st Intellectual and Industrial Rights Court, and determinations that created a case-law were made.

First of all, the court determined that the regulation on "the direct transfer of the software to a third party only with the licensed device" specified in Article 16 of the OEM license agreement is not related to copyright protection, but to the commercialization of the product. In fact, the court even more sternly stated that the aim of the software company here is to "keep the second-hand market under control".

As a result, in the determination of the court and the approval made by the Supreme Court, it was evaluated that this article included in the contract was not required by law, but was an attempt to increase the company's own sales. Therefore, violation of this contract article does not constitute an act contrary to the law, namely FSEK.

With each new computer, the certificate for the operating system that was originally issued is attached to the computer by typing the OEM number of the computer.

On this label, the name of the company that produces the computer is written directly together with the OEM number, and that operating system is specific to that computer. This ensures that the operating system cannot be moved to another computer in accordance with the contract made. In fact, the vendor takes this situation into account and markets OEM licensed operating systems cheaper than other portable operating systems. However, it would not be wrong to say that this system will change with the decision mentioned above.

As the Istanbul 1st Civil Court of Intellectual and Industrial Rights has stated in its decision, there is also a precedent decision given by the European Court of Justice on this issue. Issued in 2012 UsedSoft vs. In the Oracle (C-128/11) decision, the Court made some important observations on second-hand software. For example, the court, 2009/24/EC Computer Programs Directive art. He stated that the “copies” mentioned in paragraph 4 are not only limited to those sold in boxes on CD, but also the original copies “downloaded from the internet” are included in this rule. He even clarified that patches and updates developed and published by the author are also included in this. In other words, a person does not just buy the software he bought with the box, At the same time, it has the right to transfer the software that it has legally downloaded from the internet and the subsequent updates. However, the Court noted that a multi-user package license cannot be disassembled and all of them can only be transferred “whole” by deleting them from previous computers. In this way, it is especially underlined that the copyright of the owner of the work is not harmed. In addition, the court, since the owner's right to distribute the work has been exhausted, the later transferees are also in the directive art. 5, they are the “legal buyers” and therefore these persons have the right to reproduce. Lastly, the Court noted in particular that the right to reproduce includes the right to download, run and store software, as well as the right to "download". stated that the package license containing more than one user cannot be divided into parts and that all of them can only be transferred to others “whole” by deleting them from previous computers. In this way, it is especially underlined that the copyright of the owner of the work is not harmed. In addition, the court, since the owner's right to distribute the work has been exhausted, the later transferees are also in the directive art. 5, they are the “legal buyers” and therefore these persons have the right to reproduce. Lastly, the Court noted in particular that the right to reproduce includes the right to download, run and store software, as well as the right to "download". stated that the package license containing more than one user cannot be divided into parts and that all of them can only be transferred to others “whole” by deleting them from previous computers. In this way, it is especially underlined that the copyright of the owner of the work is not harmed. In addition to this, the court also stated that the later transferees of the directive art. 5, they are the “legal buyers” and therefore these persons have the right to reproduce. Lastly, the Court noted in particular that the right to reproduce includes the right to download, run and store software, as well as the right to "download". In addition, the court, since the owner's right to distribute the work has been exhausted, the later transferees are also in the directive art. 5, they are the “legal buyers” and therefore these persons have the right to reproduce. Lastly, the Court noted in particular that the right to reproduce includes the right to download, run and store software, as well as the right to "download". In addition, the court, since the owner's right to distribute the work has been exhausted, the later transferees are also in the directive art. 5, they are the “legal buyers” and therefore these persons have the right to reproduce. Lastly, the Court noted in particular that the right to reproduce includes the right to download, run and store software, as well as the right to "download".

However, there is a point that should not be overlooked here. That is, the program will still be on only one computer. In other words, if the program is transferred from the computer on which it was first installed to another computer, it must be removed from the first computer. The Istanbul 1st Intellectual and Industrial Property Court has already discussed this issue and specifically stated that the author could not prove that the software was on more than one computer.

It is clear that this new situation will provide financial savings in terms of computer and wasted software, especially when many computers are used by government offices and other private institutions, when they go for computer renewal. In addition, we think that the creation of such a second-hand market will relatively reduce software piracy. The important result for the consumer is; Now, software is also allowed to be sold legally in the second-hand market such as cars, computers and bicycles. Below we present the whole decision for your information:

T.C.

YARGITAY

11. LAW OFFICE

 2014/17376

 2015/8772

 30.6.2015

CASE: In the case heard between the parties, the Court of Appeals requested the examination of the decision of the Istanbul 1st Intellectual and Industrial Rights Civil Court, dated 27/06/2014 and numbered 2011/96-2014/117, and it was understood that the appeal petition was submitted within the time limit. After listening to the report prepared for the file and reading and examining the petition, pleadings, hearing minutes and all documents in the file, the necessity of the job was discussed and considered:

DECISION: The attorney of the plaintiff stated that the defendant's application to the prosecutor's office, by claiming that it was obtained illegally, that it was pirated and that it was not possible to sell second-hand, caused the seizure of his client's products, their seizure, the suspension of the sales of his client, the defendant's products put on the market through box sales or OEM sales. It is stated that it is purchased from the first user for a fee and sold to third parties, that the OEM license does not become unlicensed, illegal, copy or pirated in any way if the COA label is removed from the computer where the software is sold together through OEM sales, that the user who buys the computer removes the OEM license from his computer, completely deletes it from his computer or even the COA on the computer. Noting that removing the label cannot be considered as a violation of the rights of the defendant,Regardless of the way in which the released operating systems and software of the defendant are put on the market, it is not infringed on the defendant's rights arising from both FSEK and other laws, contracts and regulations, and that the defendant's products are second-hand, after being bought and sold by the first user through completely legal means. It has been determined that buying and selling of the second hand product is a legal transaction, that the person who buys the second hand product has all the rights that belong to the first user, that the second hand original products seized during the search made at the workplace of the client company were unfairly confiscated, He requested and sued for the collection of 1,000 TL, pecuniary and 1,000 TL, non-pecuniary damages from the defendant.At the trial stage, it was decided to separate the case regarding pecuniary and non-pecuniary damages.

The defendant's attorney stated that the plaintiff has no legal interest in filing a lawsuit in the civil court while the criminal investigation is ongoing, that the criminal case should be a pending issue, that his client has not sold the computer operating programs that are the subject of the lawsuit, but that the usage rights have been given to computer companies or 3rd parties under license, this is in the nature of a simple license transfer. , his client has included provisions in the license agreements that the programs will be transferred under certain conditions, that according to these agreements, the program cannot be disposed of as claimed, that the confiscated products have COA labels that have been tampered with and that they have been re-released together, they have not been put on the market for the first time, that there are products belonging to different brands,In OEM license agreements, it is stated that it was brought together by the plaintiff and sold by giving the impression of a valid license to the end users, that the COA label was removed and the phrase belonging to the hardware manufacturer (computer manufacturer) was engraved on it, that no information and document could be presented from whom and under what conditions the seized products were purchased. He demanded the dismissal of the lawsuit, stating that it was subject to certain conditions, that the plaintiff's actions caused damage to his client's rights arising from the license agreement.He requested the dismissal of the lawsuit, stating that no information and documents could be submitted regarding the conditions under which the seized products were purchased, that the transfer was subject to some conditions in OEM license agreements, and that the rights of his client arising from the license agreement were damaged by the actions of the plaintiff.He requested the dismissal of the lawsuit, stating that no information and documents could be submitted regarding the conditions under which the seized products were purchased, that the transfer was subject to some conditions in OEM license agreements, and that the rights of his client arising from the license agreement were damaged by the actions of the plaintiff.

At the end of the trial by the court, according to the content of the claim, defense, expert report and the entire file, the plaintiff has a legal interest in litigation, the claim of tampering on the COA labels, the change of the serial numbers should be evaluated within the allocated compensation case, and in the case at hand, it was determined that the 2nd case, which was found only as a result of a search, and named OEM. In case of a concrete dispute, the claimant will take the CD on which the program is installed from OEM licensed computer users, and affix the COA authenticity label attached to the computer case, and purchase it together with the user manual,By deleting the name of the hardware company written on the COA label and licensing all of them together to other users, that is, it is understood that the defendant is the second-hand seller or licensing of computer programs, Article 16 of the OEM license agreement regulates that the software can be directly transferred to a third party only together with the licensed device, this restriction is not related to copyright protection, Since it is a contractual regulation regarding the method of commercialization of the program, since there is no imitation, article 16 of the contract, which prohibits the transfer of the original program separately from the computer, aims to keep the second-hand market under control, not intellectual property protection, and since this target has nothing to do with the protection of intellectual property rights, the provision of the contract is on intellectual property. has no legal basis forIt is not possible for the defendant to assert the relevant article of the contract against the plaintiff, the European Court of Justice has a similar decision, the defendant is in a position to check on which computers and on which computer the programs are installed for the first time in accordance with the license agreement due to the technology owned by the defendant, On the grounds that the defendant party could not prove that it was actively used in other computers at the same time, it was decided that the purchase of the subject programs from the first user and selling them as second hand products did not violate the copyright of the defendant on the program.Due to the technology owned by the defendant, on the grounds that the defendant could not prove that the programs were installed on which computers for the first time and on which computer they were installed in accordance with the license agreement, and that the obtained software was also being actively used on other computers, on the grounds that the defendant party could not prove that the programs subject to the case were purchased from the first user and used as a second-hand product. It has been determined that the sale of the company as a free software does not infringe the copyrights of the defendant on the program.Due to the technology owned by the defendant, on the grounds that the defendant could not prove that the programs were installed on which computers for the first time and on which computer they were installed in accordance with the license agreement, and that the obtained software was also being actively used on other computers, on the grounds that the defendant party could not prove that the programs subject to the case were purchased from the first user and used as a second-hand product. It has been determined that the sale of the company as a free software does not infringe the copyrights of the defendant on the program.It was decided that the sale of the product as a hand-made product did not violate the copyright of the defendant on the program.It was decided that the sale of the product as a hand-made product did not violate the copyright of the defendant on the program.

Decision appealed against the defendant's representative.

The information and documents in the case file, the fact that there is no procedural and illegal aspect in the discussion and evaluation of the evidence based on the justification of the court decision, that the OEM license agreement that prohibits the second-hand sale of computer software is not valid against the imperative provision in article 23/2 of FSEK no 5846. Accordingly, all appeals of the defendant's counsel are unfounded.

CONCLUSION: Due to the reasons explained above, it was unanimously decided on 30.06.2015 to APPROVE the verdict, which was found to be in accordance with the procedure and the law, by rejecting all appeals of the defendant's attorney, and to collect the remaining 2.50 TL of appeal fee from the appellant. (GAIN)