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Publishers cannot oppose resale of digital products, says EU court
Publishers cannot oppose resale of digital products, says EU court
July 3, 2012 | By Mike Rose

July 3, 2012 | By Mike Rose
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In a move that may have significant implications for digital video games in Europe, a new ruling by the Court of Justice of the European Union states that the licence agreement for a digital product can be resold between customers.

At the moment, if a user purchases a video game through a digital distribution channel like Steam or Xbox Live Arcade, the customer is prohibited from reselling the licence agreement to other customers.

However, this new ruling of Oracle vs UsedSoft [PDF] could change all that in Europe. UsedSoft acquires Oracle licences and resells them -- a point that Oracle is not happy about. Oracle brought proceedings against UsedSoft, asking that these practices be halted.

Now the European Union court has given its judgement, stating that UsedSoft is free to redistribute Oracle licences, as long as the original licence holder no longer continues to use the key.

"Where the copyright holder makes available to his customer a copy - tangible or intangible - and at the same time concludes, in return form payment of a fee, a licence agreement granting the customer the right to use that copy for an unlimited period, that rightholder sells the copy to the customer and thus exhausts his exclusive distribution right," explains the release.

"Such a transaction involves a transfer of the right of ownership of the copy. Therefore, even if the licence agreement prohibits a further transfer, the rightholder can no longer oppose the resale of that copy."

Restricting resales of digital products would "go beyond what is necessary to safeguard the specific subject-matter of the intellectual property concerned," it added.


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Comments


Simon Jensen
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I wonder if secondhandApp.com or buyUsedTunes.com are taken.. Resale of digital goods is going to be one big messy can of worms.

Kyle Redd
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Assuming the ruling becomes binding, I wonder if this will actually affect the sales of physical discs more than digital downloads. The ruling does not state that the platform operator (Steam, Origin, etc.) has to facilitate their customers' desire to resell their games. But with discs, the mechanism is already there in the used games market.

So it may end up that that locking game discs to a specific console, as Sony and Microsoft have been considering, will be ruled as a violation of this specific order.

Giro Maioriello
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'The ruling does not state that the platform operator has to facilitate their customers' desire to resell their games.'

True, but I think that ultimately the onus will fall on to the platform holders/providers to do this. I think that it's more likely they'd try to contest the entire ruling than try and state that they have no responsibility to do this.

Kelly Kleider
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Or.... they'll say the whole thing is a "service" and carry on as usual.

Maybe they'll say it's a freemium thing and the initial cost is really the first installment of the service fees.

Giro Maioriello
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@ Kelly
Perhaps.... But then maybe since I'm now entitled to a service, I can sell that entitlement onward to another party.

It seems to me that the intent of the European Courts is that people who have bought software (even though it's only digital) should have the right to sell it on. It seems possible that this might also apply to games.

Software sellers can change EULAs etc in order to get round the ruling. but then the European Courts can just issue a new ruling in an attempt to implement their original intent etc. The sellers could dance around to this merry jig for a while, it depends on much money the're willing to flush down the drain -sorry- I mean give to their lawyers. But in the end, unless they convince the courts otherwise, consumers are going to get those rights, in whatever way they might be worded.

Ian Uniacke
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If you read further details of the case (http://gamasutra.com/view/news/173538/What_a_new_digital_game_tra
ding_law_in_Europe_could_mean_for_you.php) they discussed this specific problem. The court said that renaming the product will not excuse you from the laws, and I assume that will apply to renaming it as a service.

Kelly Kleider
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@Ian

The pdf linked above doesn't mention a service, nor does the article you linked, it alludes to services as an exception because they are experiential. My assumption about the re-labeling was really meant for the future, not the now, nor the past, sorry for any confusion.

I'm sure they (our digital overlords) will come up with some legal construct that returns control to them. Game requires membership or something like that. Hell a corporation (whose charter is supposed to be for 7 years) has more rights than the persons whose rights they aspired to. They are both made up of and considered to be a person. I sometimes wish I could kill a corporation in a fit of rage...but alas they have no body, even though corporation means to take body-form.

I'm sure there's an appeal that will undo everything coming.

Ian Uniacke
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I'm wondering how does this affect rental? The thing that I see being disastrous with this ruling is that I could theoretically steal a publishers profits by purchasing several copies and time slicing the license to many more customers, essentially getting 10 times (say) the customers, but only paying for the original amount. With physical this doesn't present a problem because the hassle of returning the physical copy creates a precedent where it's preferable to have your own copy. But time slicing a copy of software means that given enough proper licenses the users will essentially have the product available ALL the time but only be paying for a small portion of the time to the publisher.

Jeffrey Crenshaw
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Liked because you expressed my concerns better than I could.


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