Der Erschöpfungsgrundsatz - Josef Kohler, UsedSoft, and Beyond

In UsedSoft, the ECJ famously decided that someone who had bought software online could »resell« that software. There is an ongoing debate as to whether the ECJ created a »digital exhaustion doctrine« which would apply to the resale of digital goods in general. This article examines the reasoning for and against such a doctrine, and categorizes the various arguments that were brought forward over the past few years (II.). Moreover, the article explores whether and how the thoughts of Josef Kohler, the founder of the principle of exhaustion as applied in contemporary German copyright law, may enhance today's discussion. To this end, Kohler's ideas and motives are presented within their historical context (III.). The article shows that the exhaustion doctrine is a mechanism for reconciling opposing interests (IV.). Today's prevailing theories regarding the exhaustion of copyrighted works - which focus on the concept of property, the author's remuneration and market protection respectively - each emphasize one aspect of exhaustion but fall short of covering the whole picture.