Oracle took action against usedSoft, arguing that that its sale of used licences for software is illegal. Customers who buy second hand licences from usedSoft download software from Oracle for their use.
The First Civil Division of the German Federal Court has asked the ECJ to intervene.
Oracle's licences say that they are not transferable, a statement from the Court said. Oracle claims that use of the licences leads to copyright infringement and had asked the Court to stop usedSoft from selling them, according to a Google translation of the Court's statement.
The Court said that the case will turn on whether or not someone buying a second hand computer licence is a 'lawful acquirer' of a computer program and therefore acting in line with German and EU copyright law.
UsedSoft said that it welcomed the referral.
"Asking the European Court of Justice to make a final ruling is the logical and correct decision,” said usedSoft managing director Peter Schneider. “Ultimately, the resale of downloaded software is based on European regulations which must also be clarified for all of Europe.”
UsedSoft is not the only company selling used software licences. Discount Licensing founder Noel Unwin told OUT-LAW Radio in 2007 that his company had a flourishing business selling second hand licences for Microsoft products. He said, though, that this trade was made legal by a clause in those licences allowing for a transfer of them.