My Opinion: European Court Rules That You Can Resell Downloaded Software and Games

Don’t judge a post by its cover.

The Court Of Justice of the European Union has today ruled that people should be able to resell digital downloaded games and software. This should completely change how services like Steam and Origin operate.

Ruling title: “An author of software cannot oppose the resale of his ‘used’ licences allowing the use of his programs downloaded from the internet… The exclusive right of distribution of a copy of a computer program covered by such a licence is exhausted on its first sale”

Therefore the software owners can’t stop you reselling your copy to someone else. This is because the right the software owner had originally to exclusive distribution rights is stopped after they have sold you a copy.

In more detail: “The first sale in the EU of a copy of a computer program by the copyright holder or with his consent exhausts the right of distribution of that copy in the EU. A rightholder who has marketed a copy in the territory of a Member State of the EU thus loses the right to rely on his monopoly of exploitation in order to oppose the resale of that copy… The principle of exhaustion of the distribution right applies not only where the copyright holder markets copies of his software on a material medium (CD-ROM or DVD) but also where he distributes them by means of downloads from his website.”

This ruling came about because software developers Oracle took German company UsedSoft to court for reselling licenses of Oracle products. When it reached the European Court it went in favor of UsedSoft. This now has implications for all purchases online such as games bought through Steam and even software from Microsoft. It may even stop publishers attempting to ban the reselling of boxed products too.

There is a catch however if a license is sold indefinitely i.e. not a license for a year. Then software authors can prevent us from reselling our copies.

The ruling also states that: “The Court observes in particular that limiting the application of the principle of the exhaustion of the distribution right solely to copies of computer programs that are sold on a material medium would allow the copyright holder to control the resale of copies downloaded from the internet and to demand further remuneration on the occasion of each new sale, even though the first sale of the copy had already enabled the rightholder to obtain appropriate remuneration. Such a restriction of  the resale of copies of computer programs downloaded from the internet would go beyond what is necessary to safeguard the specific subject-matter of the intellectual property concerned.”

This directly states that it is inappropriate for copyright holders to insist on the right to be remunerated with every re-sale, which could have legal implications for the current console generation. This is because various console publishers have introduced various ways to try to stop people selling their old games and then game retailers selling them as pre-owned. Meaning pre-owned customers have to pay extra for example to get access to the Cerberus Network in Mass Effect 2 which was free for all new copies of the game.

The Court also states: “That an original acquirer of a tangible or intangible copy of a computer program for which the copyright holder’s right of distribution is exhausted must make the copy downloaded onto his own computer unusable at the time of resale. If he continued to use it, he would infringe the copyright holder’s exclusive right of reproduction of his computer program.”

It’s clear that if someone does resell a digital copy of a product they must also remove their version of it from their computer because it would become a copyright violation as it would become a reproduction not a resale.

However it also says: “However, the directive authorises any reproduction that is necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose. Such reproduction may not be prohibited by contract.”  Which mean current loopholes publishers are using could now be illegal.

It’s all pretty interesting and quite complex and definitely not law yet. However it will be interesting to see how the various software companies like Microsoft and digital platforms like Steam and Origin will react. Most companies don’t support reselling and their site infrastructures sure don’t either with sites like Steam likely banning your account if you even tried.

I have mixed feelings about the whole thing sure its good that you can resell you old digital games and software (there hasn’t been a need for me to do so far) but I can see it being misused and hard to police. Piracy is already widespread and not really frowned upon by the public at large and I wouldn’t want it to get even more complex to stop, easier to do or with less repercussions.

Will sites for example like Steam have options for you to resell old games? Will they have to be bought originally from Steam or can any digital game be sold there? What kind of prices would you get? full price or similar to current pre-owned games? and will retail stores reintroduce the ability for people to sell their old PC games? Theres too many questions and not many answers. Change is good and all but someone has to sort out all the little details.

This ruling has wide-reaching implications for the gaming, technology and manufacturing industries at large with challenges to the ruling bound to be made and with more details needing ironing out. You can safely bet that this ruling wont become law to a country where you live for a very long time to come.

Some of my other opinions: