Tribunal wonders if Microsoft has found a legal hero after pivot to copyright gambit
- Reference: 1760947214
- News link: https://www.theregister.co.uk/2025/10/20/microsoft_valuelicensing_tribunal/
- Source link:
The [1]litigation has rumbled since 2021 , beginning with reseller ValueLicensing filing a suit alleging Microsoft had slipped clauses into customer contracts to restrict the resale of perpetual licenses in return for discounts. The effect, according to ValueLicensing, stifled the market. A sueball claiming £270 million in lost profits was lobbed Microsoft's way.
Microsoft, naturally, denies the alleged wrongdoing and earlier this year bit back with an argument that reselling perpetual licenses was, in fact, [2]infringing its copyright .
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According to ValueLicensing, reselling a perpetual license is perfectly legal. The company is relying on a European ruling in the [4]UsedSoft case , which found that used software licenses could be sold. Microsoft, on the other hand, asserted that Office is not covered by the [5]Software Directive , but by the [6]Copyright and Information Society Directive . The latter covers creative works, and because Office has resources like icons, fonts, and help files, Microsoft argues Office qualifies as a creative work.
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In September, ValueLicensing boss Jonathan Horley [9]told The Register : "It's a remarkable coincidence that their defense against ValueLicensing has changed so dramatically from being a defense of 'we didn't do it' to a defense of 'the market should never have existed.'"
During the [10]Preliminary Issues trial before the UK Competition Appeal Tribunal in September, Justin Turner KC, the chairman, commented to ValueLicensing's KC, Matthew Lavy: "As you point out, Microsoft only had this bright idea relatively recently. Someone in the legal team may or may not become a hero or heroine, we shall see."
[11]Pre-owned software trial kicks off in UK as Microsoft pushes resale ban
[12]Microsoft facing multibillion legal claim over how it sells software
[13]Microsoft's spat with ValueLicensing limps toward 2026 showdown
[14]ValueLicensing tries to smack down Microsoft defenses in license reselling spat
Horley told The Register : "It was an important trial dealing with [the] way the pre-owned market for second-hand software licenses operated ever since the [15]UsedSoft decision from the ECJ in 2012 and whether it was lawful. The judgment will be of interest to the Wolfson class action and many other pre-owned resellers across Europe."
What was the UsedSoft case all about?
Oracle and UsedSoft fought it out in the courts over the reselling of perpetual licenses. The [16]European Court of Justice eventually ruled against Oracle, upholding the right to resell perpetual licenses.
The [17]Wolfson class action refers to a claim brought on behalf of UK customers regarding alleged abuses of market dominance and restrictive licensing practices by Microsoft. A loss could see Microsoft forced to make a multibillion-pound payout.
Microsoft also claimed that the practice of companies selling only a portion of their licenses was not permitted and that licenses purchased under volume licensing must be sold in their entirety. ValueLicensing disputed this.
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However, the copyright question and its potential effects on reselling software as a whole were the stars of the show. Is Office an artistic work rather than a program? While the images on the Office toolbar might be an integral part of the software, Microsoft's representatives pointed out that an Office installation also contained other copyrighted works, such as documentation. "It's not Dickens," said Jaani Riordan, on behalf of Microsoft, "but it's a literary work. It's original."
It will be up to the Competition Appeal Tribunal to make a judgment on Microsoft's latest argument. Finding in the tech giant's favor risks blowing a hole in the pre-owned software market. Finding against could, however, end with Microsoft being on the hook for £270 million. ®
Get our [19]Tech Resources
[1] https://www.theregister.com/2021/04/08/valuelicensing_microsoft_lawsuit/
[2] https://www.catribunal.org.uk/judgments/15705722-t-jjh-enterprises-limited-trading-valuelicensing-v-microsoft-corporation-and-1
[3] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_software/front&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=2&c=2aPYIOH5gGOAvSHsycsMisAAAAMA&t=ct%3Dns%26unitnum%3D2%26raptor%3Dcondor%26pos%3Dtop%26test%3D0
[4] https://www.osborneclarke.com/insights/the-end-of-the-usedsoft-case-and-its-implications-for-used-software-licences
[5] https://eur-lex.europa.eu/eli/dir/2009/24/oj/eng
[6] https://eur-lex.europa.eu/eli/dir/2001/29/oj/eng
[7] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_software/front&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44aPYIOH5gGOAvSHsycsMisAAAAMA&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[8] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_software/front&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33aPYIOH5gGOAvSHsycsMisAAAAMA&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[9] https://www.theregister.com/2025/09/08/microsoft_valuelicensing_latest/
[10] https://www.catribunal.org.uk/cases/15705722-t-jjh-enterprises-limited-trading-valuelicensing
[11] https://www.theregister.com/2025/09/08/microsoft_valuelicensing_latest/
[12] https://www.theregister.com/2025/05/13/microsoft_licensing_lawsuit/
[13] https://www.theregister.com/2025/01/06/valuelicensing_microsoft_trial_date/
[14] https://www.theregister.com/2023/12/19/valuelicensing_files_a_summary_judgment/
[15] https://curia.europa.eu/juris/document/document.jsf;jsessionid=348844F4E795D8928C115DC5D7B9487D?text=&docid=124564&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1038521
[16] https://www.theregister.com/2012/07/05/usedsoft_vs_oracle_ruling_analysis/
[17] https://www.theregister.com/2025/05/13/microsoft_licensing_lawsuit/
[18] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_software/front&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44aPYIOH5gGOAvSHsycsMisAAAAMA&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[19] https://whitepapers.theregister.com/
Re: "Is Office an artistic work"
I'd be checking if a fine for contempt of court is in order. Micros~1 would love to have the case thrown out.
Re: "Is Office an artistic work"
I think that plenty of authors would happily dispute the idea of improving.
But, assuming the courts accept the idea (which I think unlikely), then Microsoft would be walking into the minefield not only of copyright legislation, but they could also lose their indemnification regarding defects.
Re: "Is Office an artistic work"
Copyright is a legal creation in which artistic merit plays no part and I don't imagine judges or the rest of us would relish courts being called upon to decide which works of alleged art deserved protection and which did not.
The legal response should presumably be to claim that the "artistic" material is incidental and covered by "fair use" (to the extent that argument can be made in English law) or that, as the material is inseparable from the software itself and not covered by a separate licence, there is an implicit licence of copyright within the software licence itself.
However, the important thing about the law is that it can be changed. The law is clearly due an overhaul in respect of digital "property" - stuff you've "bought" but you don't control - and this is only one of many instances where corporate power needs to be curbed, Whether politicians, starry-eyed at the vast sums of "investment" planned in covering the countryside with energy-guzzling, employment-destroying, truth-mangling and ultimately untaxable AI bit barns, will decide they want to fight on the side of their constituents is a question left to the reader.
Re: "Is Office an artistic work"
If a majority of customers bought the office suite to get specific tasks done and not because they are art lovers it should be straight forward for a court to decide if that product is a tool or a work of art.
Red herring?
Sounds like a bit of a red herring to me?
They are not distributing the copyrighted works, they are reselling the license codes which provide access to said works. (unless you deem license codes copyrightable, which opens a whole new can of worms...)
Also, isn't there existing case law for this? I'm fairly certain that you're allowed to resell (access to) copyrighted works like music and books as well in most (if not all) european countries, assuming you do not make copies or sell it multiple times.
I'm unsure about reselling individual licenses which are part of a volume licensing plan, there's a lot of variables there and i'm not a legal professional by a long shot.
One rule for me
Seems to me that Microsoft should take this way of looking at copyright to the training of AI models. Once they ensure OpenAI uses this strict of a definition of an artistic work they can make this argument in court. But until then they can STFU.
Art for art's sake, Money for God's sake
Is it "art" or is it a patentable "invention"? If they claim it's art, does that mean it's no longer a patentable invention and therefore the patents no longer apply? You can't patent art, so if you can patent it, it's not art.
MS may be opening an expensive can of worms they can't close.
"Is Office an artistic work"
No, it is not.
An artist is an individual who takes care of his artistic vision and strives to improve himself from one work to the next.
Borkzilla doesn't care about improving itself, and claiming that icons have colors does not make Redmond a painter.
I would really like to be a judge just to throw out this case with extreme prejudice.