The UK’s Court of Appeal has dismissed Microsoft’s appeal against a ruling that ValueLicensing (VL) can resell pre-owned software licences.

The judgement, handed down July 7, follows a ruling by the Competition Appeal Tribunal (CAT) in November that customers could resell their licenses, even if Office contained clip-art.

In 2021, VL filed a claim accusing Microsoft of stifling the market for pre-owned on-prem software licenses, alleging the US biz baked restrictive clauses into its contracts – essentially, better subscription deals for customers who didn’t resell old licenses. VL sought £270 million in damages; Microsoft denied wrongdoing.

The case later took a turn, when Microsoft attempted to reframe it as a copyright dispute. VL was leaning on the EU’s UsedSoft ruling, which established that secondhand software licenses could legally be resold. Microsoft changed tack and countered that Office’s icons and help files made it a creative work, and thus covered by the Copyright and Information Society Directive rather than the software licensing rules UsedSoft addressed. Microsoft also argued that licenses it had sold in bulk (for example, a 1,000-seat purchase) couldn’t legally be broken up and resold piecemeal by VL.

The CAT rejected both arguments and ruled unanimously for ValueLicensing. Microsoft filed an appeal, and that appeal has now failed.

The judgement is unambiguous on both counts. On copyright, the Court of Appeal agreed with the CAT that Microsoft’s reasoning would lead to “odd results.”

“It would mean that all that was necessary to avoid the effect of UsedSoft would be to incorporate some icons or clip art with the program,” the judgement noted.

As for the subdivision of volume licenses, again, the Court of Appeal sided with the CAT and dismissed Microsoft’s appeal: there’s nothing wrong with VL’s approach.

VL’s Jonathan Horley said in a statement: “I am delighted that the Court of Appeal has given such a clear judgement in ValueLicensing’s favour on both of Microsoft’s appeals. The judgement agreed with all the main conclusions of the CAT on both rulings under appeal as well as clarifying the overall legality of our business model.”

Horley pointed out that none of Microsoft’s arguments succeeded and VL now intends to pursue its compensation claim.

“We are considering the consequences of the Court of Appeal’s judgement for Microsoft’s defence to our claim and will focus in the coming weeks and months on the key procedural steps leading up to a liability trial,” he added.

A Microsoft spokesperson said: “We respectfully disagree with the court’s decision and will seek permission to appeal. Today’s decision does not address ValueLicensing’s core complaint that we gave customers the option to apply the value of their licenses for older products to new cloud subscriptions rather than selling them to third parties.

“We continue to believe that was both legal and the right thing to do. Helping our customers move to the cloud improves productivity and security.”

Justin Turner KC, the judge presiding over ValueLicensing’s claim, is also overseeing Alexander Wolfson’s collective action against Microsoft. Wolfson was granted permission to intervene in the appeal on March 30, and the judgement noted that “the intervener’s position was essentially supportive of VL’s case.”

That potentially makes today’s dismissal significant well beyond VL’s own claim. The Wolfson collective action, bolstered by this ruling, could expose Microsoft to liability running into the billions, dwarfing the hundreds of millions at stake in VL’s original claim.