European Court of Justice rules: You can resell digitally purchased software.

[Martinus]

ECJ is saying that concluding a licensing agreement constitutes a first sale within the meaning of the specific directive and a transfer of ownership to a copy of the program.

49      As the Advocate General observes in point 59 of his Opinion, if the term 'sale' within the meaning of Article 4(2) of Directive 2009/24 were not given a broad interpretation as encompassing all forms of product marketing characterised by the grant of a right to use a copy of a computer program, for an unlimited period, in return for payment of a fee designed to enable the copyright holder to obtain a remuneration corresponding to the economic value of the copy of the work of which he is the proprietor, the effectiveness of that provision would be undermined, since suppliers would merely have to call the contract a 'licence' rather than a 'sale' in order to circumvent the rule of exhaustion and divest it of all scope.

Directive 2009/24 is a directive that requires that Member States "shall protect computer programs, by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works"   That is, it is a copyright directive that enforces a treaty on the protection of IP.

Thus, the way I would read this as an Amerikanski lawyer is something like this:
An IP holder's rights in a copyrighted work are deemed extinguished upon first sale, and for the purposes of copyright law, "first sale" is defined to include software transferred via licensing, as well as outright sale.  The rationale is that doing otherwise would permit copyright holders to gut the first sale doctrine.

All fine and good.  But it sill leaves open the question whether the software manufacturer could still sue the purported transferor for violation of the terms of the licensing agreement as a matter of breach of contract, even if there is no copyright violation.

I would need to brush on my IP law, but I think the doctrine of EU exhaustion (which is an extension of the free movement of goods principle) means that any contractual provision contrary to it is unenforceable/illegal, as it violates the EU treaty (which is the directly applicable law in the EU).

An attempt of suing the end user who is a consumer would then not only be unsuccessful, but could very well be considered and fined as consumer rights violation, if widespread; in B2B relationships, I could see there being a case built for a dominant position abuse, too, if the suing software provider was deemed to have either an individual or a collective dominant position.

[grumbler]

Grumbler?

Don't ask me>  I have no idea how this works.  Sounds like you know much more than me.