EU rules publishers cannot stop you from reselling your downloaded software

• Rin wrote on 2012-07-03 18:16

  The Court of Justice of the European Union has ruled that publishers cannot stop you from reselling your downloaded games.
  
  More specifically: "An author of software cannot oppose the resale of his 'used' licences allowing the use of his programs downloaded from the internet."
  
  The Court said the exclusive right of distribution of a copy of a computer program covered by the license is "exhausted on its first sale".
  
  The ruling means that gamers in European Union member states are free to sell their downloaded games, whether they're from Steam, Origin or another digital platform - no matter what End User License Agreement has been signed.
  
  The ruling continues: "Therefore, even if the licence agreement prohibits a further transfer, the rightholder can no longer oppose the resale of that copy."
  
  The ruling suggests that if you've bought a license for a game off your mate, you're within your rights to download it from the publisher's website. "Therefore the new acquirer of the user licence, such as a customer of UsedSoft, may, as a lawful acquirer of the corrected and updated copy of the computer program concerned, download that copy from the copyright holder's website," the Court said.
  
  Whether Valve and EA will make changes to their websites to reflect the ruling remains to be seen.
  
  The ruling in more depth:
  
  "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. Such a transaction involves a transfer of the right of ownership of the copy. Therefore, even if the licence prohibits a further transfer, the rightholder can no longer oppose the resale of that copy."
  
  There is one condition, however. If you resell a license to a game you have to make your copy "unusable at the time of resale". Now you will do that, won't you?
  
  "If he continued to use it," the Court explained, "he would infringe the copyright holder's exclusive right of reproduction of his computer program. In contrast to the exclusive right of distribution, the exclusive right of reproduction is not exhausted by the first sale."

  
  
  Source: http://www.eurogamer.net/articles/2012-07-03-eu-rules-publishers-cannot-stop-you-reselling-your-downloaded-games
  
  Press release from the Court of Justice of the European Union: http://curia.europa.eu/jcms/upload/docs/application/pdf/2012-07/cp120094en.pdf
• Yoorah wrote on 2012-07-03 18:32
  Great for us consumers (if such policy trickles down to Canada and the US), but I wonder how fair that is overall. Selling nontransferable licenses could be a valid business strategy in the sense that the customer and publisher would have two options:
  1) A nontransferable license at reduced cost, for customers who do not foresee the need to resell their product, and;
  2) A transferable license where the customer resells their product. This translates into reduced sales for the publisher, which they can fairly and partially cover by offering such a license at a higher cost.
  
  Microsoft currently does something similar with their OEM and Retail licenses for Windows. An OEM license is available at a large discount, but it is bound to the computer you first install it on and Microsoft offers no support. The Retail license, by contrast, costs a bit more and can be transfered to another computer, and grants you access to Microsoft tech support.
  
  This could also really hurt Steam, given how community-oriented and connected it is. Friends could just share games instead of buying them, a lot easier and more conveniently than would be done in person with physical discs.
• Rin wrote on 2012-07-03 18:40
  I wouldn't hastily apply this court ruling to video games, as regular software and video game sale and consumption are a bit different from each other.
  
  This also might spur publishers to make more free-to-play games as opposed to retail, as a means to make profit by "offering a service" than "selling a product", since licenses do not affect services like products.
• Sumpfkraut wrote on 2012-07-03 18:52
  Yes! Sometimes, living in the EU is good. Now about how the food industries are handled...
  

  Quote from Rin;900180:

  I wouldn't hastily apply this court ruling to video games, as regular software and video game sale and consumption are a bit different from each other.

  
  What do you mean? And how does that change the fact that intrinsically all software is software, no matter how it's used?
• Yoorah wrote on 2012-07-03 19:12
  I think he means that a game is basically consumed once you've finished it and got bored with it, so you're likely to resell or trade that. Whereas software, like say, Photoshop, is a tool that can be used for many years. It actually reminded me of that case way back when someone wanted to sell their old copy of Photoshop and Adobe said they can't.
  There is a clear economic and practical distinction between the two, but I do not know if there is a legal distinction as well. It would certainly be more fair and less damaging to the industry if this only affected the former.