«Agotamiento» en la era digital

The judgment of the Court of Justice of the European Union of 3 July 2012 (UsedSoft v. Oracle) opened intense debates about the appliability of the rule known as «exhaustion on the right of distribution» to all those works of intellectual property collected in digital format on a non-physical medium. Until 2012 it was understood that the rule of exhaustion was only applicable to those works of intellectual property marketed in a physical support (or corpus mechanicum). Nevertheless, the Court makes an interpretation in which it updates the rule to the digital economy understanding that when (as in the case in court) a license agreement without temporal limitation for the use of a computer program is concluded and the program is downloaded directly online from the rights holder´s website, the contract is analogous to a sale with regards to the rule of exhaustion. This article analyses the pases through which the digital economy has gone through in terms of the transmission of digital content (divided into threee periods) as well as other figures close to the rule of exhaustion as the doctrine of the first sale and the implied license; as well as the consequences that could have a more or less expansive interpretation of the possibilities of the right holder to introduce technological protection measures in the works of intellectual property that he commercializes known as Digital Right Management, from an economic point of view.