Still smarting from Court of Appeal loss earlier in July, Microsoft has secured an extended stay in the ValueLicensing saga as it seeks the Supreme Court's blessing for one more roll of the dice. The UK's Competition Appeal Tribunal (CAT) ruled in 2025 that the resale and subdivision of Microsoft on-premise software licenses did not infringe the US corporations 's copyright.
Microsoft appealed and, on July 7, lost. Proceedings had already been stayed in February pending the Court of Appeal's decision, and an extended stay was granted July 21 after Microsoft indicated that it intends to seek permission to appeal to the Supreme Court. Microsoft has undertaken a potentially high-risk strategy.
Having first contested a claim by ValueLicensing that it had inserted contractual clauses to nudge customers toward Microsoft 365 subscriptions and prevented those customers from reselling their perpetual licenses, it changed tack. Microsoft suggested that reselling its software was illegal due to copyright infringement. The CAT ruled otherwise.
Microsoft appealed and lost. ValueLicensing sued Microsoft for £270 million in 2021 over claims that the company choked off the supply of surplus Office licenses. It's a big number, but not as big as a class action that bears several similarities to the case.
That action, represented by Alexander Wolfson, could result in a multibillion-pound payout. Microsoft has a lot to lose if things don't go its way. The stay does not apply to ValueLicensing's disclosure application, nor does it apply to the confidentiality application.
ValueLicensing noted that the applications "are expected to be considered at a further Case Management Conference in September, meaning the case continues to move forward despite the stay." The stay hinges on what happens with the Supreme Court. The Chair, Justin Turner KC, said: "As yet it is unknown whether permission to appeal to the Supreme Court will be granted.
It is necessary for me to balance the potential for a waste of costs in the event permission is granted and an appeal is successful, against the undesirability of delay in these proceedings." The approach, where the outstanding applications could proceed, was described as "middle ground" by Justin Turner KC. "These steps are proportionate at this stage given that the Claimant has successfully prevailed before this Tribunal and the Court of Appeal."
In the earlier judgment rejecting Microsoft's appeal, it was noted that Microsoft's approach, if followed, "would produce odd results." First, there was a distinction made between products on CD-ROM, where Microsoft can't control the resale market. Then there was the potential for a legal minefield around UsedSoft, where Oracle's attempt to stop the sale of secondhand software licenses was stymied by an EU court in 2012.
The Microsoft approach, according to the judgment, "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 Register asked Microsoft to comment but it has yet to respond. ValueLicensing boss, Jonathan Horley, told The Register: "We are pleased a full stay of the proceedings hasn't been granted and we can progress the outstanding applications on further disclosure and confidentiality.
These are important steps to enable ValueLicensing to progress swiftly to a full liability trial. As was noted in the Reasoned Order, we succeeded at first instance and in the court of appeal and the decision to allow our disclosure applications to progress now represents a fair and proportionate decision which seeks to minimise further delay to the determination of the claim."
Originally published at theregister.com
