Crikey: EU Rules You Can Resell Downloaded Games

By John Walker on July 3rd, 2012 at 4:00 pm.

This could get interesting.

Well here’s some pretty huge news. The Court Of Justice of the European Union has just ruled that people should be able to resell downloaded games. In an environment where publishers are trying to destroy basic consumer rights like the ability to resell physical products you’ve paid for, this could be one heck of a turnaround for customers. And that’s no matter what it might say in the EULAs. This could have absolutely enormous implications on how services like Steam, Origin, GamersGate and the like work, and finally restore some rights back to the gamer.

The draconian and almost inevitably unenforceable rules we all pretend we’ve read and agreed to whenever we buy an online game are packed with ridiculous attempts to remove our rights of ownership. At best, when those rules are held to their letter, we’re long-term renting the games, with no rights to protect their being taken away from us at any point. So a ruling saying we have enough ownership that we can actually sell them on to others is a massive difference. Of course, it does ask one rather huge question: Er, how?

The preliminary ruling states,

“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 was a result of software developers Oracle taking German company UsedSoft to court for reselling licenses to Oracle products. However, after reaching the European Court, a surprise blow came against the big publisher. And it has massive implications for all of online purchases, including games bought from places such as Steam, Origin, GamersGate, etc. And even further implications for those publishers attempting to ban the far more commonplace reselling of boxed products too.

The specific rule seems to be that if a license is sold indefinitely – i.e. not a license for a year, or similar – that the rightholder “exhausts his exclusive distribution right”.

“Such a transaction involves a transfer of the right of ownership of the copy.”

That sentence is a really massive deal. It’s the very first time there has been any official sense of ownership via digital distribution, and if it gets implemented by courts, it’s going to change a great deal. From our having the legal right to sell games in our Origin accounts, right down to surely taking away the ability for companies like Valve and EA to block customers’ access to their purchased games for other infractions.

Right now we have companies like Microsoft and Sony looking for ways to make reselling of their products impossible for their next generation of consoles, and presumably relying heavily on the perceived redundancy of the argument if those games were purchased online (as surely the next gen consoles will want to focus on). But pow, maybe not. With a ruling that states,

“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 whole deal just got an awful lot more interesting. It appears to be directly stating that it is inappropriate for copyright holders to insist on the right to be remunerated with every re-sale, which could even have legal implications for the current systems various console publishers have introduced, forcing pre-owned customers to pay a tithe before the game will work properly.

The ruling also makes it clear that if someone does resell a digital copy of a product, they must remove their version of it from their computer – because at that point it does become a copyright violation, as it’s become a reproduction, not a resale. But fascinatingly, it adds, “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.” What does that mean for the current exploits publishers are using, too? Could they now be illegal?

How companies like Steam, EA, etc will react will be very interesting. Their current infrastructures certainly don’t support reselling, and they’d probably ban your account if they caught you trying to. This is a ruling whose implications could stretch a very long way. There are bound to be challenges to the ruling made, and we can assume this one will stay in courts for a good while longer.

__________________

« | »

, , , , , .

386 Comments »

  1. AmateurScience says:

    Now if they will just compel Steam et al to build the functionality into their clients then we’re on to something.

    Edit: alternatively could this cause more distributors like Steam/Origin down the netflix route of a monthly sub of £X for access to Y games? Thus completely sidestepping the ruling.

    Edit Edit: Also, if people were able to freely trade games for prices that they set from £0 up, and that’s facilitated by robust client tools, direct sales from pub/dev will surely drop through the floor?

    Edit Edit Edit (last one, promise): Anything stopping them just changing the EULA to state that you’re buying a 10 year lease to the software? (Apart from that being evil)

    • Kdansky says:

      Actually, I would love to have the option to give my friends my games for free, just like the olden days where you’d borrow a CD (or a book). Currently, I can either buy them a copy (that’s expensive!), encourage them to buy a copy (that’s a hard sell) or encourage them to pirate a copy (very suboptimal), but as usual, closest to the actual intent.

    • Baines says:

      Seems like it would mostly compel digital distributions to switch to subscription services. You wouldn’t “buy” a game at all, but rather lease it for a number of years.

      Alternatively, if it stands and places like Steam don’t try to dodge it, then I wonder what it would mean for stuff like Indie bundles and general Steam sales. Both work on the idea of short term discounts.

      Edit: Indeed, being able to resell “used” digital games could destroy pricing. With physical copies, there is at least some degradation that makes the “used” copy less valuable. Online even makes transfers easy, compared to passing on physical copies.

      And if people have a reasonably easy way to sell their own games, enough that resellers like Gamestop aren’t such a convenience, then there wouldn’t even be the resellers’ artificial price setting to keep prices high.

      • AmateurScience says:

        This is what happens when folk start trading in a resource that is effectively infinitely reproducible and has no intrinsic value whatsoever.

      • LionsPhil says:

        Steam already word your use of their service, including “buying” games on it, as a subscription—it’s just a one-off payment perpetual one.

        Quite how the legalese for all this thrashes out, I don’t know, but presumably lots of people who are paid to know are currently trying to work it out.

        • lionheart says:

          For everyone without a legal education;

          You can’t just add any terms you like to a contract, various pieces of legislation prohibit, for example limiting liability for serious injury. Freedom of contract is limited, especially for consumers, to prevent large companies from bullying them into giving up their rights.

          Also, what you call something in a contract is irrelevant, the courts will always try to determine what it actually is, not just what you say it is. Hence calling something a “subscription” when you are granted rights in perpetuity for a one time payment, is irrelevant. A sale is a sale.

          The only way around this would be to only sell games as a “real” subscription service, i.e. you rent access to the games, and if you stop paying then your rights of access eventually expire.

          Also the ridiculous get-outs of charging £40 for the first payment and then a penny a year after that “subscription charge” will never fly either, the courts want the spirit of the law obeyed as well as the letter.

          • Skabooga says:

            Indeed, that irrelevance of wording was the crux of the recent ruling of U.S. Supreme Court on the Health Care Act.

          • Whallaah says:

            It actually also adds up to already existing laws: In the Netherlands, the supreme court ruled that software, including those with ‘limited rights’ and are still products, you have the right to demand security patches and basic support for.

            All in all, within a few months, the legal system where I live suddenly redeemed it self as it comes down to modern technology.

          • Tinus says:

            Thanks, I didn’t actually know that. It’s very reassuring. :)

          • Apolloin says:

            This is all true HOWEVER companies like EA have already sidestepped this issue in practice by providing one-time activation keys to ‘free additional content’ for the initial purchasers.

            In order to sidestep this legislation the industry will simply start providing the last two thirds of a game online and you will need to buy a key to activate it, which will activate it only on your account. The tranferable/saleable version of the game will, in effect, become a demo.

          • DodgyG33za says:

            Except that the law doesn’t work like that. As far a the law is concerned, you are buying access to that two thirds, so that would also be transferable unless it had a time limit,

            Expect to see BF4 Premium as a yearly subscription…

      • callmeclean says:

        Although this could have bad effects on services like steam regarding pricing. I’m not sure it would be too bad. Well not for the smaller and cheaper games that are made by vulnerable indie developers anyway. It would have the same mentality as people who download games through torrents. So many people who do this and then really like the game, will see it for a reasonable price on steam and get it. And then urge their friends to get it so they can play together or just to support the developer. So if steam had a system that physically removed the copy from your hardrive automatically when you sold it off. Then that would be one incentive for another sale. As another copy would need to be bought for each person wanting to play together. Also as I said above I think lots of steam users would like to support developers and have all those games in their own library.

        I think it will effect big AAA games more adversely. And I think that’s fair. Considering if I pay for an awesome $10 I don’t mind if someone in my own house has to buy it again on their account to play with me. But if I buy say an $80 or a $100 game. It should really have the ability to share it around a bit like the good old days. And if I really want to play MP with someone else then I guess I will have to buy another copy. And unless it’s a really fun MP game, people will just play it some and then pass it on to a friend or sell it off. Which could very well lose big publishers a lot of money, a good and a bad thing.

        Personally I think this is going a bit too far. Maybe they should allow for passing on of licenses and large expensive titles to come with like a few or more individual licenses for multiple people. Allowing people to resell for whatever price they want might very well do more harm than good.

      • Snargelfargen says:

        Subscription based services are definitely part of the answer, but not all of it. Recurring fees will deter occasional gamers, and they are also a tough barrier for the most valuable customer of all: the impulse purchaser. Steam sales and the like are built around attractively discounted impulse purchases, and the amount of unplayed games in many gamers’ accounts shows that people are more than willing to buy things they don’t need and won’t use in the near future if the price is low enough.

        Really the only conclusion i can (drunkenly) draw is that free to play/pay for goodies games are becoming an even more attractive proposition. You can resell a game, but you can never resell the emotional investment that comes from playing a particular character or account over time.

        Basically more free games, more attention put into making the first several hours enjoyable (hooking or “catching” people), and more incentives to keep on playing the same old games for a longer period of time.

    • Rusty says:

      Worse: they’ll sell you a one-year license and you’ll have to renew annually at some small but non-zero cost. From the publisher’s point of view, this is a lovely opportunity: “We’d love to just sell you the game, but the Court won’t let us protect our interests, so now we’re forced to change from sales to subscriptions in order to comply with the terms of the decision.”

      • lordcooper says:

        Or they rent you a game for a hundred years at the same price they currently cost to buy.

        • The Random One says:

          Pretty sure the courts could rule a hundred-year lease is effectively the same thing as a sale, unless you are Nosferatu. Publishers risking losing their precious rights for your convenience? Pfft.

      • Sheng-ji says:

        It is a lovely opportunity for steam, origin et al; Right now I can guarantee that they don’t have second hand stores not because of anything to do with us, the consumers but to protect their relationships with publishers.

        Why wouldn’t they, sell a game at a lower cost, but crucially. add their reseller fee and take the same money for the game as they would have for a new sale. The lower price comes because they don’t have to give any of that money to the publisher – obviously the seller will get what he asks for, but it will be a free market: to sell a copy, you would have to sell it cheaply enough to make it worth it for the buyer.

        OK look, I’m not explaining this well at all but I bet the DD services start offering it with the excuse to the publishers that if they don’t, someone else will and at least they can regulate and control to a point the deletion of the copy from the sellers computer.

        • Apolloin says:

          There is one tiny flaw in your cunning scheme – it’s bollocks. Sorry, no offence, I just had to use the Blackadder quote.

          Seriously though, the one tiny flaw in this consumer rights love-in is that it humps the leg of the people who actually bust their asses over a steaming hot digital anvil to make games. Most people don’t sell their games to interested third parties, they hand them over to Gamestop for a tenner off their next purchase (usually a second hand purchase) whilst Gamestop resells them at almost full retail price minus what they’d usually have to pass back to the people that actually made the thing.

          This has very little to do with consumer rights and almost everything to do with propping up bricks and mortar.

          • ix says:

            You just reaffirmed that this is a good deal for everyone except the publishers, who don’t get to be paid twice for a copy that only one person is playing. I fail to see how that is not good for consumer rights.

            Maybe gamestop is a horrible store (I wouldn’t know, I live in Europe), but that doesn’t mean they’re not allowed to make money of the used games market. The same applies to books, music and video (though they have the same problems when going digital).

            tl;dr, there is no compelling reason to state that a publisher should make money on the same copy twice. That they worked really hard to make the game is not a valid reason.

    • darkath says:

      Anyway, the court decision is massively flawed in one major aspect.

      There is no transfer of ownership of “a copy” because there is no ownership to begin with.

      What Oracle, Valve, sell sell are Licences to use a product, not a product itself.

      The court decision would actually make sense if it dealt with “transfer of licence of a copy”, and if it would allow Licence users to sell their own licence to use a product to a third party.

      Now that’s just semantics, but in a Legal context it’s pretty much paramount.

      • Brun says:

        Read the ruling again. The whole premise of the case was that some company in Europe was selling used Oracle DB licenses secondhand, and Oracle sued them for infringement. The court ruled that first sale exhausted Oracle’s right to ownership since the software was sold with an indefinite license.

        • Apolloin says:

          So it’s a nail in the coffin of unlimited licenses then? Now every software license will be limited in duration, much like my Norton license is?

          Thanks so much for standing up for my rights, EU Courts.

    • Archonsod says:

      Assuming they don’t get around it by the fact they already market it as a subscription rather than a software sale I doubt it would take much for Steam to handle it. Just make all of your purchases inventory items, that way people can sell/trade/gift them as they please. Or the GMG route of allowing you to trade in purchased games might work.

      Don’t really see this having much effect to be honest, all they need to do is remove any text in their agreement to the effect that you may not resell games. There’s nothing in the directive that states they have to facilitate your ability to do so, merely that they cannot prevent you doing so.

      • Commodore says:

        In the end, what they call it does not matter – the courts want the spirit of the law to be followed as well as the letter. If they call it a subscription, but you have indefinite license, it’s a sale, and that’s that.

        Charging full price and then a penny a year after that is out the window as well – that’s a sale trying to work a nonexistent loophole.

        The only way to “get around” it would be to charge an actual subscription fee that removes your access after a time if you stop paying it.

  2. Theory says:

    No more Steam sales in the EU, then.

    Edit: actually, this has pissed me off enough to stick my head above the parapet. Here we go:

    Reselling makes sense on two grounds:

    # Products degrade with use. There is always a downside to buying second-hand.
    # The value of a product is constant. A stool is not intrinsically more worth more after being resold.

    Neither of the above apply to works of digital art because they are not products but consumable information. Their value is not in what they are – binary data that only a computer understands – but because of the ideas they put into our heads.

    A database tool is just as useful the 50,000th time it is used as the first time, but we consume the value of an artwork into our minds every time we experienced it.

    I saw this quote from George Bernard Shaw in Civ 5 which sums the concept up nicely:

    If you have an apple and I have an apple and we exchange apples, then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.

    Reselling a game reproduces its value into a second person’s head. It is unfair that developers don’t get anything for that.

    (In defence of the ruling, it is about a software tool and may not have considered artworks at all.)

    • sinister agent says:

      I don’t see why not. Low prices make reselling pointless. If I buy a game for two quid, it’s really not worth the hassle to sell it for one measly quid. If I buy it for twenty though, it might be worth flogging on for a tenner.

      • Xocrates says:

        That logic might extend to the point that it could encourage game companies to lower game prices in the EU. Which would be very welcome.

        Ending sales would be about the worst thing they could do short of stop selling games on EU altogether, since sales would become the easiest way to encourage buying direct instead of second hand.

        • Berlot7 says:

          It might also have the effect of raising prices to recoup investment costs as they won’t have as many purchased copies spread across many more people.

          • idiotapocs says:

            This, I believe :(

          • Milky1985 says:

            If they raise the price they will also lower sales, market forces as well will drive the price backdown, it has taken them a long time to get the price of a game in the uk to £50, and thers still pushback

          • Apolloin says:

            What are you talking about? AAA new game prices have been in the $40 to $60 range FOREVER. What’s causing the impression that game prices are rising is the increase in ‘special editions’ and DLC/Expansions.

      • Slaadfax says:

        Under these circumstances there will more than likely be a large number of individuals who buy mass quantities at the low sale price, then undercut when the price returns to its usual amount.

        Although it begs the question; so they might be “capable” of reselling their games, but what sorcery will force the distributors to make easy tools to do so?

        • Xocrates says:

          Yes, the more likely outcome is that you can contact customer support to transfer a game, but no special infrastructure is in place.

          The other likely outcome is that games start being rented for a determined and finite amount of time in order to circumvent this.

          • JBantha says:

            I was thinking about how usual are the 99 years period contracts are nowadays, anyway.

          • klo3 says:

            Well, paid personnel vs. an automated function (maybe an auction house) where Valve/EA takes a cut should be a pretty obvious case business wise…

        • ArthurBarnhouse says:

          Just because they are required to let you resell games does not mean they’re required to also sell you as many copies as you want to purchase. I don’t think you can even
          But multiple copies of the same game in steam right now, except for bundles where you get to gift them to other people. Steam just won’t let you register multiple copies of the same game. If you’re selling a game, then your losing the copy you have connected to your account.

          • Boothie says:

            Yes however this doesnt change the fact that a resale effectively keeps the money out of the publishers hand, ie i play this game and finish it and then give/sell it to my friend, that is 60$ out of the publishers hand since my friend dont have to go and buy a copy for himself

          • ArthurBarnhouse says:

            I was responding to the idea that steam sales meant that you could capture huge quantities of on sale games then sell them back to people after the steam sale was over. I don’t know what impact used game sales would have with respect to publisher/developer profits. However, this is already basically occurring in console-land, and it seems to have not brought the walls of Jericho down.

          • Kadayi says:

            @Boothie

            I would imagine that Valve and the publisher would add in some resale cut. Essentially. You could sell a title to a friend, but a % of that sale would somehow go to the digital distributor (after all it’s their service that’s hosting) and a % to the publisher.

          • Wisq says:

            Steam may prevent you buying multiple games on the same account, but doesn’t prevent you from making hundreds of accounts each with one or more games bought on sale.

            If we’re going to continue to have these lovely sales, they’ll need to put some sort of conditions on them. Like having the buyer pay the difference if you sell them.

          • ArthurBarnhouse says:

            I guess that’s possible but I would say that it’s not extremely likely. That would be a lot of work and the profit would be margional at best, since you would have to sell the item higher than the sale price. Also valve could change the steam Eula to say that a person can only have one account, then block sales based on ip addresses or credit cards or something similar. Which would not be ideal, but it is theoretically possible if it was causing significant harm to the service,

            I don’t know, you’re right, it could be a problem, but I just generally doubt it.

          • Zakski says:

            Doesn’t steam record what price you paid for a game anyway? surely they would use that

        • kalelovil says:

          edit: ArthurBarnhouse covered what I was about to say.

      • Malcolm says:

        Presumably steam could implement this by permitting you to “gift” games where you only have a single copy. Whether you accept payment in exchange for this gift is then entirely up to you.

        • GreatGreyBeast says:

          Yes, interestingly services like Steam might be particularly well set up for this, as they have the means to enforce the transfer (make sure you don’t keep a copy after the sale). Not that they WANT to – their entire business model is built around this not happening.

          • Chris D says:

            Valve may be able to profit like this if they could set up a digital equivalent of pre-owned sales in brick and mortar retailers. If they offered to buy back games themselves that would be far more convenient than trying to find a buyer yourself, then they could make a profit on the second sale too.

            I’m not a lawyer or an economist but I suspect this is the point at which things get tricky.

          • Khann says:

            Or a system that gives Valve and the publisher of the game being sold a cut of each used sale.

          • DiTH says:

            I dont see how the publisher can get a cut being legal.Publisher gets his cut when the game is sold.Valve can argue that the cut they take on trades/resales is to pay for their costs of the trade/resale.

          • Chris D says:

            DiTH

            I don’t think they could legally force you to give them a cut, but they could offer to buy it back from you themselves and then re-sell it. I suspect a lot of people would take them up on that for the convenience alone.

          • stupid_mcgee says:

            @ Chris D: That’s how Greenman Gaming handles their resale policy. You sell the game back to Greenman for a depreciated value, and then they sell it to someone else. (eg: you buy Civ5 for $40 and then sell it back for $20)

            The real problem with this is that it actually undermines things like Steam’s great sales. Using the previous example, you could buy Civ5 for 75% off and then resell it for $20. That would mean that you would earn $10. So, in order for Steam to maintain such cheap sales, they would have to seriously diminish resell values to make sure they weren’t being screwed over by resellers.

            I wholeheartedly agree with the intent of this, but I do worry about the actual implementation of it. I also wonder if Steam will just try and do this exclusively for EU, to comply with the ruling, and not for the NA and other territories.

            This would actually be a great topic for Valve’s economist’s blog. (sorry, his name escapes me at the moment)

          • Chris D says:

            @stupid_mcgee

            Yeah, I think it would mean we’d see a lot less sales. On the up side that would be counteracted somewhat by people being able to by cheap “used” games. I put down some thoughts on how it might work later in the thread.

            Difficult to predict how this will play out but possibly we’d have games at similar prices but we’d get them through different mechanisms.

        • Njordsk says:

          You’ll see shittons of forum pages for exchanges in that case, i’m not sure they want to lose that much money.

          I mean I can completly resell my whole steam library minus a few game I love replaying. I don’t think they want me to trade 80+ games against some other I could have paid.

        • The Random One says:

          Man, I’d love to be able to gift Steam games. Roughly half my library is games from one of the myriad indie bundles I tried once and didn’t like.

          Conversely, indie bundles often let you have both a DRM-free copy and a Steam code. I can see that disappearing if anyone can keep the DRM free copy and trade the Steam version for hats.

      • alinos says:

        Simple actually.

        If tomorrow steam has a sale on Max Payne 3. for 5 dollars. Before it returns to 50 for the next 6 months.

        Provided I had the capital I could buy 50,000 keys for it. Hell maybe enough that they run out during the sales period.

        Then for the next 6 months I can sell those copies for $10-15(200-300% markup) massively undercutting steam. And pocketing a pretty penny for myself.

        Of course Steam could implement a system where you have to sell it back to steam itself to prevent something like that.

        • alundra says:

          It doesn’t has to be so complicated, all Valve needs to do is implement a buy back system, say, they pay you $1 in store credit for every game you want to part with.

          Store credit, as in, money already spent on them,

    • Shuck says:

      Or skyrocketing prices and no sales, at least. (If you can buy it on sale and then resell it later for several times what you paid for it…)

      • InternetBatman says:

        If people buy it on sale and resell it for more, doesn’t that just make the sales more attractive and provide greater incentive for them to be offered more often?

        It’s fairly hard to make a profit off of used digital products. I worked for a company that did just this, and it took a fair deal of math with one or two people editing it every day to make sure it stayed ahead of the game.

        People will buy used if it saves them money, but if there’s money to be made on the internet you’ll have some fierce competition, which’ll drive down prices, making it harder to make money. After all, someone has to take the hit and buy new.

        • Shuck says:

          Right now those crazy one day Steam sales seem to drive sales even when prices return to normal. But when the normal prices are competing with used sales, it seems to screw up the dynamics that make those heavily reduced sales and bundles possible. And unlike physical copies that degrade and have limited resale potential, digital copies can be resold perpetually.
          Clearly there’s only one rational response to this: all games will make their money off of free-to-play mechanics. ;)

    • Unaco says:

      What about Indie bundles? What about Indies in general? Implementing the necessary systems for allowing customers to resell their games, and everything else with this could hit them pretty hard.

      • Havok9120 says:

        The ruling doesn’t compel companies selling things to provide the functionality to allow a resale. It says that they cannot ban a resale and that the consumer has the right to resell what they buy.

        Its a theoretical decision, not one that compels action (beyond the changing of EULA language).

      • Xocrates says:

        Depends, if their implementation is simply sending you a download link (like Humble Bundle does), then there’s nothing else they really need to do since all the seller would require is to forward said link.

        • chuckles73 says:

          Of course, forwarding the download link would force additional cost on the publisher (edit: ie bandwidth). I highly doubt they’d let you do that. Sure, you can resell your copy of the game, but they’re not going to deliver it for you.

      • Chris D says:

        I think so long as you don’t have DRM you’d be okay. You wouldn’t necessarily have to actively support re-sale, just not actively work to prevent it.

        That is a whole ‘nother kettle of fish all by itself though.

        • RobinOttens says:

          So actually the best way to implement this is the indiebundle/gog.com model if you ask me: Games with no DRM, free to be copied infinitely, but with clear communication to the buyer that, to support the developer, the only way is to pay them directly. If a game is worth the money, people will pay.

      • Unaco says:

        @ All of the above

        So… the reselling doesn’t have to be done by the original seller/owner of the DD service, or be implemented into their service? They just can’t object to the reselling? That probably works better, and won’t be so much of a problem.

        • byteCrunch says:

          The ruling simply means they cannot oppose the sale of software, regardless of EULA etc.

          It does not mean companies have to offer the means to resell your software, for example you want to sell your copy of ME3, EA has to let you, previously they would claim this invalidates the EULA and that the license was nontransferable, this ruling simply means they cannot do this, if you wish to resell software there is nothing they can do.

          This ruling should also apply to physical used games, it is not just digital download.

          • xellfish says:

            It has to be possible, though. That’s not the case with most services right now. You can’t just take your bytes and send them to someone, because the service has a mechanism in place that actively makes this impossible.

            So they either have to remove that mechanism (DRM) entirely, or they have to provide a way to resell your game through their service. Everything else would be illegal.

          • byteCrunch says:

            No the ruling just states you can sell your software license and the publisher cannot stop you, it does not require publisher to provide you with the means to do so.

            It is the same with physical used games, publishers do not provide the means to sell the game, a third-party does, all the ruling means is that publishers cannot stop you from selling the software.

          • Llewyn says:

            Except that in the case of Origin the publisher is stopping you from selling it by enforcing a mechanism that makes selling it impossible. You’re correct that they don’t have to facilitate your sale in any agency or brokering way, but it’s wrong to think that merely saying something is allowed is sufficient to actually allow it.

            To present a less-than-ideal analogy: if a court rules that an agency is allowed access to my house and that I may not prevent them from gaining access, it is not sufficient for me to stand firmly behind my locked and barred door saying “Of course you can come in”.

          • gwathdring says:

            bytecrunch:

            You’re missing the point–he’s not saying they need to necessarily provide the means. Rather, currently they are actively prohibiting a resale. The only way I could sell my steam games is to sell access to my entire account rather than the software licenses within it.

            That in mind, in order to maintain the fundamental workings of steam (the steam DRM system) and allow resales, Steam would have to create a resale infrastructure. All other ways of allowing resale require at least temporarily letting games and licenses come out from under their control which would defeat the purpose of the steam DRM service.

    • pkt-zer0 says:

      Yeah, that’s the thing. I’m not sure if this will ultimately end up benefiting the customers. Digital products are rather different from physical ones.

    • fenrif says:

      Yeah, like if i buy a second hand painting, I can only see 20% of the picture because of degredation!

      Or if I buy a second hand DVD or book or CD, well I mean, mayaswell just throw money away!

      Everyone knows books and art aren’t as usefull the 50,000th time as the first time, that’s why all those museums and libraries only have digital stuff in them!

    • JakobBloch says:

      Bernard Shaws line there is flawed. While there if transferring an idea was perfect then yes, you would have two identical ideas, but this is not the case. The idea is filtered through the second persons personality, philosophies, belief and understanding not to mention mood. What you actually have will be 2 different ideas. Similar but not the same. The second idea will be the second idea will be the seconds persons and the first person will have no rights to it even though it was his idea that sparked the second one.
      The thing about the game is more akin to having a painting on the wall. Every time you look at it the painter imparts some idea onto you. Depending on what you notice, your mood and so forth you get different things out of it. If you sell the painting you will no longer be able to receive the original idea but you will still have all the thoughts and ideas it spawned in you. Same with the game. If you sell it you will no longer be able to play it. You loose the right to experience it again.

      It is sorta like the term “stealing an idea” when it comes to artistic endeavours. When you “steal an idea” you are nopt just copying it. You are taking it and making it your own, by putting your own touch on it.

      • Theory says:

        Para 1: Why does that matter?

        Para 2: It would certainly take a long time to completely exhaust a work, but you can’t seriously be suggesting that there isn’t a difference between its value to the reseller (who is presumably bored of it) and to the buyer (who is presumably interested in it).

        Paintings are a problematic choice of example BTW, since a lot of the time they are bought simply for decoration and as such are more like tools than works…

    • Bent Wooden Spoon says:

      They’re not selling ‘digital art’ though, are they? Publishers made the decision a good while ago that their consumers shall no longer buy games, they’ll purchase ‘licenses’ instead. A license is not simply an idea. To paraphrase George Bernard Shaw:

      “If you have an apple and I have an apple and we exchange apples, then you and I will still each have one apple. But if you have a license key for Adobe Photoshop and I have a license for Adobe Photoshop and we exchange these licenses, then each of us will still have one license.”

    • yhalothar says:

      Reselling a game reproduces its value into a second person’s head. It is unfair that developers don’t get anything for that.

      So it’s just like selling a book, then, and yet you don’t see many people cry fould about that.

  3. Chris D says:

    Oh!

    Well I guess this changes things….

  4. sinister agent says:

    If anyone noticed a slight shift in the Earth’s gravity earlier today, that was the result of every lawyer in the industry jumping up to punch the air.

  5. tlarn says:

    It’d be pretty cool to “sell back” games on my Steam account for Steam Wallet credit towards other games in their system. I’m sure Steam keeps track of how games are added to your library, but also how much you spent to add it to your account; can’t trade back Humble Bundle games back, only get a percentage back of what you put in, and stuff like that.

    • evilbobthebob says:

      That’s exactly the kind of thing I expect. It’d be much like selling used games to retailers for store credit. That doesn’t technically provide remuneration, of course, but it’s better than nothing and Steam certainly wouldn’t mind. Heck, Steam already has a trade system for gifts, they just have to extend that to games and make it an “at your own risk” thing.

      • AmateurScience says:

        Problem there is that, unlike selling a disc in a box to a bricks and mortar retailer, your digital game on steam has absolutely no value to Valve whatsover, there’s no reason for them to give you credit when the only cost of selling a digital copy is bandwidth and customer service, because they incur precisely the same cost selling a ‘new’ version as they would for your ‘used’ version.

        I imagine if this is going to be something that Valve is involved in it’ll be strictly peer to peer with a transaction fee to Valve for facilitating the transfer of the licence and the distribution of the code.

      • Koshinator says:

        Unfortunately this doesn’t really cover the transfer of full right of ownership of the copy, as you can’t sell your copy to anyone, just trade it back into the store for credit. Unless steam itself wants to set up a digital auction house for resold games… which sort of sounds plausible.. the gamification of selling ‘second hand’ copies of digital games… weird

  6. noclip says:

    Sanity prevails.

    • Cinek says:

      EXACTLY!

      Nice to see something good going on comparing to TOTAL BS that is US&A “”LAW”".
      In days like these I’m proud to live in EU!

    • LTK says:

      I disagree, this ruling is insane. It’s just insane in our (the customers’) favour.

    • ArthurBarnhouse says:

      Why is law in double quotation marks? Is it scarier that way? Also, we are not traditionally referred to as the “United States & America”.

      • methodology says:

        Although not traditional, I think we should change it to that permanently.

      • DodgyG33za says:

        And we are traditionally not referred to as “British”*, but that doesn’t stop most of your compatriots.

        * The United Kingdom of Great Britain and Northern Island. Although most of us prefer to be referred to by our country – English, Irish, Scottish, Welsh and often Yorkshire and Cornish.

  7. epmode says:

    Games as a sevice incoming.

    • deejayem says:

      That was my thought. If you can still prevent re-sale of software licensed for a limited period, the next big (eg Diablo 3-sized) release will probably have something in the EULA to say that the licence is only temporary.

    • Shooop says:

      Incoming? Where have you been the past 3 years?

      • Chris D says:

        True enough, but this might well see the move in that direction greatly accelerated.

        • Brun says:

          Doubt it will accelerate faster than it already has been. The easiest way around the ruling is to set the EULAs up as 99-year “temporary” licenses for copies bought in the EU. That circumvents the provisions of the ruling and requires minimal change to the publishers’ existing business model.

          • mersault13 says:

            Not really. Courts aren’t stupid. If publishers just changed all their language so that you are leasing a 99 year license on a game then the courts would probably hold that it’s a de facto permanent license. That it is technically not a “permanent” license doesn’t change the fact that whoever originally bought the 99 year license would be dead by the time lease ran out. If the price is the same, the consumer used the product for the same average amount of time, but they can’t sell their game because they’re just “renting” it for 99 years then it’s just a de facto permanent license.

            If 99 year licenses were allowed, the publishers would just be able to circumvent the property right, which the EU courts just ruled gamers are entitled to, by couching the EULA language as a temporary license. I don’t know jack shit about EU laws, but in the good ol’ US of A there is a strong history of policy against limiting one’s property rights to the extent that once you have a property right you can do whatever the hell you want with it.

            It will be interesting to see if this will have any effect on US law and the used game market. My guess is probably not because ‘Mericans don’t like to follow crazy European civil law.
            Source: Me, attorney for two years, i.e., still a baby.

          • Brun says:

            I’m no attorney, but unless there is a clear definition of “indefinite” set up in EU law, I think that games companies would at least have a respectable case to challenge any injunction placed against them under that provision. They wouldn’t technically be taking the property right away. It would be against the spirit, but not the letter, of the law, and the letter is what counts.

            Besides, it wouldn’t have to be 99 years – it could be 30, or 15. Publishers will probably want to take it as low as they can without setting off too much customer backlash. And if for once they wanted to be nice to their customers, the publishers could set the license duration to a relatively short period but then voluntarily decline to enforce expired licenses.

          • mersault13 says:

            Well in the US, sometimes the courts look at the letter of the law and sometimes the spirit in deciding a case. But in all cases, where someone is technically complying with the letter of the law, but their intent is to defeat the spirit of the law, the court will look at the legislative intent or court’s reasoning behind the law.

            It’s one of the reasons why the racial segregation of schools failed even after the Civil Rights Act of 1964. States were just redrawing school districts so that it just happened that all the black kids ended up in one school district and all the white kids in another. They were technically complying with the law, but their actual intent was to circumvent it.

    • Zanchito says:

      Games as a service is happening anyway, might at least try to get some of our rights back. Also, I’m so not getting into games as a service at full retail price! It’s not like there’s a shortage of alternative leisure options.

    • Brise Bonbons says:

      My first thought too. I am no lawyer, but it seems like this might just be another reason for publishers to make more F2P games (you never really own the game, just some items in it. Right? Or would this mean you can sell the hat you bought?), or to make more subscription services.

      Of course, none of that concerns me until this gets tested in the US, and given how corporation-friendly our government is these days…

    • kert says:

      Arent all MMOs already game as a service anyway ?

    • fionny says:

      This will be tackled too im sure,

  8. Mike says:

    I wonder if this will affect app sales also? That would … yeah.

  9. Crimsoneer says:

    Shame that until Publishers agree to it, it means absolutely diddly squat. Look at Green Man Gaming – they’ve had this funtionality for years, but mots of their catalogue doesn’t support it.

    • Kodeen says:

      I think this ruling would remove the publishers’ choice on the matter, that they would be compelled to allow their games to be resold. What might happen is an industry-wide adoption of Project $10.

    • Alexander Norris says:

      This does mean they can be compelled under EU law, though! There’s now precedent if someone (e.g. a consumer rights group) wants to sue a publisher to allow reselling digital games in the EU.

    • Crimsoneer says:

      This doesn’t “compel” pubishers to do anything. It means, strictly speaking, you can resell your Steam account. It doesn’t mean publishers need to make DRM that allows you to sell products on. You’re allowed to do it, taht doesn’t mean publishers need to help you get it done.

      • Kaira- says:

        And what then when you can’t effectively transfer the license? Hm?

      • Kodeen says:

        I was under the impression you could sell individual games instead of (or as well as) entire accounts.

        Anyway, while publishers might not be forced to actively do anything to allow you to resell your games, under the ruling they couldn’t do anything to prevent you from doing so either. I imagine things like limited-activation DRM schemes will run afoul of this ruling.

        Think of retail. Games get resold all the time and the publishers have no say in the matter.

      • Crimsoneer says:

        I think you’re all massively over-estimating how much this changes things. Steam still ties all games to your account. That’s not them stopping you selling it, that’s added functionality. They’re in no way forced t o add functionality to untie games from your account by this.

    • fionny says:

      Did you not read the article?

      • Crimsoneer says:

        I did, but there’s a key difference between “You’re allowed to sell on your digital products” and “Publishers must design their products in a way that allows them to be sold on”. VALVE might not be able to tell you your steam account is purely “yours” anymore, but that doesn’t mean they have to allow you to sell it off piece-meal

        • Mattressi says:

          They don’t have to facilitate the sale, but the wording of the ruling looks to me to be saying that they also can’t limit the sale. That is, Steam (for example) don’t need to set up a second-hand store, but they aren’t allowed to prevent you from selling each of your games (not your whole library – each individual game). If their software currently prevents that (which it does), then they need to fix that, I guess. I’d assume that simply adding functionality that allows you to un-tie the game code from your account (so that it can be activated on someone else’s account) should be all that is needed.

      • Crimsoneer says:

        That’s one possibility, but without a legal expert, I wouldn’t say Steam is “forced” to do anything. Also, nothing is now stopping Steam from going “we don’t sell games, we sell a license to play the game from 100 hours” – which would put them completely clear legally, and then screw over the consumer completely.

        Again, I’m not saying this isn’t great, but this is one legal ruling, which could result in a myriad of good or bad things.

        • DodgyG33za says:

          Maybe, but what about all the games I already have in my account. I can sell them since they never stated the 100 hour limit up front. So they are still fucked.

        • dr-strangelove says:

          “Also, nothing is now stopping Steam from going “we don’t sell games, we sell a license to play the game from 100 hours” – which would put them completely clear legally, and then screw over the consumer completely.”

          Well they could do that, but Valve would be completely trashing their reputation if they did and I for one would never buy from them again.

  10. Jon says:

    How does this affect subscription based services? Does this legalise the selling of accounts?

    • noclip says:

      The subscription thing is a loophole big enough to drive a cruise ship through and I suspect we’ll only be seeing more games and software sold on a subscription basis.

    • golem09 says:

      The specific rule seems to be that if a license is sold indefinitely – i.e. not a license for a year, or similar – that the rightholder “exhausts his exclusive distribution right”.

    • Bauul says:

      A subscription to a service is different from a physical product, as far as I’m aware. I’m not sure what the legal preceding are, but it’s not as straight forward as the right of first sale.

      Does anyone else know what the situation is here? I imagine it would be akin to me offering to sell you the last 6 months worth of my Orange contract, or my gym membership or something else of that ilk.

    • Jon says:

      Thanks for clearing that up, looks like we will see more games moving to subscriptions then – even if they are £30 for a year to disrupt second hand selling.

  11. Leeroy says:

    wow is this a consumer rights victory? I thought those days were dead!

  12. tumbleworld says:

    Note how all game “sales” will be 100yr leases in European territories tomorrow. *cough*toxic industry*cough*.

  13. fiddlesticks says:

    Minor nitpick: Steam isn’t a company.

    I’m interested to see how the major distribution platforms will react to this ruling. Maybe now I can finally rid myself of Gish.

    • tlarn says:

      I’d feel happier for the people who preordered Duke Nukem Forever or purchased it release-week.

    • codename_bloodfist says:

      I’m more interested in selling the copies of the games i have activated several times on my account.

    • InternetBatman says:

      Gish, Winter Voices, etc. There are quite a few games I wouldn’t mind getting rid of, but honestly it’s only about a fifth of my library.

    • Terragot says:

      Oh god, gish, how did that even get on my account? It annoys me being there, that and ‘and yet it moves’ are games I would pay to have removed.

  14. themayor says:

    Anyone want to buy Diablo 3?

  15. IDtenT says:

    Oh shit.

    The problem is that nobody seems to realise whether software is a product or a service. Some like it is as services, some like it as products. I really think someone should just grab the bull by the horns and a make a proper decision.

    • Cinek says:

      All the subscription-based and provider-server-side only (eg. browser-based) games are services, everything else is product. That’s simple enough IMHO. Sadly – it’s not for lawyers.

    • The Sombrero Kid says:

      The law is pretty clear, It’s a service & you’re allowed to sell your right to use it.

  16. mbp says:

    I have vague memory that once upon a time Steam used to allow you to sell used games but there was a “handling fee” (around a tenner if I recall). This memory dates back to the Half Life 2 days when Steam was new and not being able to sell your games was one of the complaints made about it.

  17. kevmscotland says:

    I’m reserving my joy.

    The industry always finds a loophole to exploit.

  18. Kodeen says:

    Note that this isn’t going to be just games, but ebooks, movies, etc…

    Ah, if only the US legal system worked for the people. This will never happen here.

    • Havok9120 says:

      Yes, because those people making, manufacturing, and distributing the games have no moral right to the protection of the courts.

      • The Sombrero Kid says:

        I’d like the right to limit your right to breath.
        EDIT: not really, but you get the point.

      • Kodeen says:

        They should, but when weighed against the consumer, not automatically. We do have the first sale doctrine, after all. Only problem is, the first sale doctrine was established pre-Reagan, I doubt in today’s climate that we’ll see a similar spirit extended to digital sales.

      • Chaz says:

        I don’t think he mean’t that they don’t deserve fair justice too. But on the whole the justice system, especially in the US, is heavily stacked in favour of whoever has the biggest cash pile, ie the big businesses. Because you, as an individual, very unlikely have the funds to compete with them if you had to fight them in a legal battle. Is it fair? Hardly. Does the party in the right always win? Not if they can’t afford to go to court in the first place.

  19. Kaira- says:

    This is a good day for us customers.

  20. Vinraith says:

    It seems pretty obvious that this will just drive the publishers/distributors to using time limited licenses and/or streaming services. In other words, things will only get worse.

    • The Sombrero Kid says:

      Except that no one is going to buy those.

      • Vinraith says:

        Sure they will, it’s not far from what they’re buying now. Steam was always essentially selling rentals, very few people seem to mind.

      • SkittleDiddler says:

        People are still willing to buy the latest XX.01 versions of Call of Duty and Battlefield. What makes you think they’ll stop to use their critical thinking skills when it comes to pure subscription-based services?

    • InternetBatman says:

      I think this will just leave bigger gaps for indies to fill. The publishing industry is losing (well, let go) a lot of genres to the indie movement. Who’s say there aren’t some indies that could be positioned to take some more?

    • DodgyG33za says:

      I think it will make things better. I have always hated how software, film and audio have played the you don’t own it but you are not paying for a subscription either to avoid a) allowing resale, and b) providing media replacements.

      If this puts them firmly in one camp or another, great. And with a subscription service, either they offer something new or I won’t extend. And if it is too expensive I won’t buy in the first place.

  21. ScubaMonster says:

    “The specific rule seems to be that if a license is sold indefinitely – i.e. not a license for a year, or similar – that the rightholder “exhausts his exclusive distribution right”.”

    Well hopefully that doesn’t mean we’re going to start getting 1 year game rentals for $59.99 now instead of actual purchases of the product.

    Also, if this does bode well, hopefully it will come to the US, but I doubt it.

  22. Optimaximal says:

    I can see Valve being quite proactive with this, possibly implementing *some* form of trading system for selling games for a modicum amount of Steam credit, ideally with the value being based on the age-of-purchase-derived portion of the average selling price for the last year i.e. if its been constantly on sale for £1.99 then it’ll be a lot cheaper than, say, Call of Duty: Man Killer which constantly sells at £95.

    Then again, they could just say ‘FU EU’ and not follow, seeing as they are a US company. I predict EA will take that step, because they’re c*nts.

    • golem09 says:

      1. Once the user has the ownership of the game, steam couldn’t dictate the selling price.
      2. They are from the US, but they are selling stuff in the EU. Either stop selling there, or abide the laws. You know, like steam has to censor game for germany whether they want to or not.

      • SurprisedMan says:

        Have a feeling they’d be able to get around this in a few ways. Steam after all still host the game downloads, and it’s their bandwidth you use when you download it, and their service wrapper/updater/achievements you use while playing the game, so arguably they are providing added value above the game itself.

  23. golem09 says:

    Have fun living outside europe

    • Vinraith says:

      Have fun paying $60 for a 1 year rental.

      • Milky1985 says:

        Have fun pulling wild numbers from where the sun doesn’t shine (why the hell are we in Europe going to spend 60 DOLLARS on a game when we don’t trade in US dollars? Also any company that tries to pull that off will be slapped in the face quickly, unless it activision with cod in which case they will be slapped in the face in a years time)

  24. Unaco says:

    If this is going to be ‘a thing’, I can imagine it causing quite a stir. Yes, for Steam and Origin etc. it’s going to cause quite the changes, but I’d reckon they’ll be able to survive all of that. What about Indies though? I can imagine something like this hitting them quite hard possibly… setting up the system(s) required for reselling, lost revenue etc. What about reselling 5 or 6 games I pick up for $0.50 from a bundle at $2 each? Who’s going to determine the price I can resell for anyway?

    • TechnicalBen says:

      In the specific court case commented on, I think it was a separate company doing the reselling. It did not cost Oracle anything to setup the reselling, as the customers/separate company covered the entire costs of this.

      So Indies will be ok, providing this is not an encouragement to not purchase indies or to pirate more.
      Frankly, more people getting free copies of individual games from the Humble bundle would encourage more purchases IMO (half from those not worrying about duplicates because they are happy to gift them away, the other half wanting to buy the full bundle because liked the gifted of a single game).

    • Zelos says:

      This thing called “market value” will.

    • Salt says:

      The price you can charge when reselling your games will be determined entirely by how much someone is willing to pay you. There’s no reason for the game’s publisher to have a say in it.

      If an indie (or anyone else) is selling DRM-free games then there’s no additional cost to them to comply with this. The judgement appears to be “you must not prevent someone reselling your digital product” rather than “you have an obligation to make a nice store for them to sell it in”.

      If a developer has invested in DRM then they’re likely to be facing either needing to remove the DRM or add functionality that allows the transfer of rights between users.

      • dr-strangelove says:

        I think that’s the most likely outcome. From now on games can only include DRM if that DRM somehow facilitates reselling of the game.

        So companies will have to weigh the perceived value of including DRM in a game against the cost of implementing a system to allow resales

    • Vinraith says:

      The ruling doesn’t say you have to facilitate reselling, it just says you can’t actively prevent it.

      • Unaco says:

        I get that now… But, with some of the current services, there will HAVE to be some sort of implementation for the reselling, surely. I’m not familiar with Desura, say (I assume it’s somewhat similar to Steam), but if I own/have a game on it, and resell it to my friend, how will it get from my account to theirs, unless Desura itself has something implemented to allow that?

        • Salt says:

          Yeah, if this is going to be “taken seriously” then a lot of DRM providers are going to have to make extensions to their systems to allow users to transfer licences.

          • Havok9120 says:

            Not until a court or legislature compels them to do so. Until then, this is just the courts saying “change the EULA to reflect that resale is legally permissible.”

            The ruling has no scope and no teeth.

  25. SurprisedMan says:

    It seems like there are so many ways this can go. It could just be used as an excuse to do even more anti-consumer things, or it could be used as an opportunity to make a genuinely positive change. I think the first company who takes this ruling in a pro-consumer direction will see benefits. I have dozens of Steam Games I’ll either never play again or never play at all, from bundles. I KNOW I’m not alone… wonder how they’ll deal with it.

  26. Flint says:

    Finally a future for all those unwanted bundle parts.

  27. frymaster says:

    two issues:

    1) let’s say steam enables game transferral. There’s already a huge issue with people getting their accounts compromised and people trying to sell them on (or sell their tf2 hats, or whatever). This will just make it easier for phishers to get money out of compromised accounts. Sure, I expect the original victim will get their games restored, but that just leaves the poor sod who bought the games from the phisher out of pocket.

    2) even if steam does enable game transferral, that still leaves issues with games using third-party cdkey systems. They’d have problems playing c&c3 online, for example, because the multiplayer key is already tied to my EA account. Even for non-login-based key systems – cod4, for example – that would still mean I could install the retail copy of cod4 that my mate has, but input the cdkey I had from my steam copy.

    All that being said…. this is interesting news, but implementation will be a bitch

    • Zakski says:

      on 2) they could just deactivate your key, and generate a new key for the buyer

      • frymaster says:

        my issue there is the word “just” – it would be a different procedure for every single game under the sun, from Quake3 to Cod4 to C&C3 to Dragon Age:Origins, to….

        They’d also need to be able to reverse the procedure in case of the scenario in 1) happening.

    • Kadayi says:

      Indeed implementation would be pretty much unfeasible and unenforceable. Given this judgement is about any form of software licence and it effectively goes against the grain of how things presently work.

      In essence it would generate a money vacuum (in the same way that second hand console sales do) in which case publishers and developers would have to find ways to increase profitability.

    • ix says:

      Regarding 1): if you buy stolen (material) goods, and the cops trace them to you, they will seize them without excuses and you will also be out of pocket. If they catch the seller of course, you might be able to get money back from him. Basically, theft has two victims: the person who got stolen from and the person who buys the goods. A reason to crack down on theft, but not a reason to completely forbid all possible forms of resale.

  28. JBantha says:

    Does this apply for other forms of downloaded media like… Adobe programs, or it is restricted to JUST video games?

  29. Calabi says:

    Maybe it’ll force companies like steam to implement a subscription, they’ll have to market it like a service and require customers to pay for it as such.

  30. Zarunil says:

    This is good news, but I’m not holding my breath.

  31. Scatterbrainpaul says:

    I’d be happy for valve to take a percentage of any games that I sell on. I have about 90 games that are sitting there doing nothing, never to be played again. Valve could make a bit of money out of this

    I think to avoid sales drops there should be a rule saying you can’t sell a game until 6 months after it’s release date or something

    • DodgyG33za says:

      So I guess you are happy to have a clause in a new car purchase, or phone or whatever, that says you can’t resell within a certain period of time because you might stop the manufacturer making money?

      Makes no sense. If you own something, it is yours to do what you will with it, period.

  32. misterT0AST says:

    freude schöner götterfunken!
    Take THAT eulas!

  33. Mosh says:

    Sidestepping games for a moment, how does this affect Microsoft’s licensing of Windows? Since XP, it’s been “this copy goes with this machine – if you scrap the machine, you must also scrap the Windows license that goes with it”, which has also caused headaches for upgraders when the OS has decided that it’s on a system so different from that on which it was originally installed that it needs a new license.

    I’m also curious to know how you’d go about policing the resale of downloaded titles. As the new laws state, you can sell on the game (I’d guess by emailing the installation file? Or via some online method yet to be devised) but how do they ensure you remove the original from your machine?

    The best machanism I can see would be to tie the resale market into the one you used for purchase e.g. Steam. When you sell the title on through a Steam second hand market, it forces removal from your PC library.

    Thing is, as soon as a game is a couple of weeks old, this is going to make the first-hand market a nightmare. When you buy second hand elsewhere, you rely on a shop picking a price point based on popularity. You also have to look out for the condition of the media. This isn’t an issue with electronic copies, so their value should remain high. There’s absolutely no difference between a 1st hand or a 2nd hand copy except for when you can get hold of them.

    Overall, I don’t know if this is a good thing or not. Certainly I’m all for it with physical copies which means it should be the same for digital, but it’s simply going to be bloody hard to create a working, reliable and easily-policed system.

    • DodgyG33za says:

      But digital media do have a value that decreases over time. Diablo 3 had a higher demand at release than a month later once the hype wore off and the problems were uncovered.

      Companies are going to have to adapt.

      This is going to be interesting…

      *gets popcorn and pulls chair closer*

  34. Ultra-Humanite says:

    Don’t start the celebrations yet. None of you have any clue what the result of this will be. Respect your ignorance for once.

    • G_Man_007 says:

      Amen.

    • Havok9120 says:

      This. The ruling wasn’t about games, nor does it compel any kind of immediate action beyond reworking the EULA. What’s more, it may have just destabilized the entire non-gaming software industry, particularly Operating Systems.

      This ruling makes me say “yikes” more than “yipee” at the moment.

    • Chris D says:

      Yeah, I think this is going to be big and the consequences will take a while to settle and won’t be easily predictable.

    • Kadayi says:

      Indeed.

      ” The Court Of Justice of the European Union has just ruled that people should be able to resell downloaded games.”

      Nothing in there about games at all.

      A more measured take on things can be found at Gamerlaw: -

      http://www.gamerlaw.co.uk/2012/07/legality-of-second-hand-sales-in-eu.html

      This judgement seems to have such a wide reaching impact for all software companies across the board with zero regard to implementation or enforcement (in effect I should be able to sell you that ringtone/MP3 I just bought) that I suspect it will overturned/amended in short order by the big boys like Apple.

  35. derf says:

    No more crap series-rinsing releases from large companies.

    Kill the large companies producing rubbish and selling it for £40.

    We’re perfectly happy with what will remain.

  36. G_Man_007 says:

    I hope I’m wrong, but I can see a future where games are just offered as a stream from a cloud-based service under a licence, so that ownership is removed and you don’t own it anymore. Cloud gaming is already here, this, though good in theory, seems to me to be something which will send publishers further down that route. Consider Sony’s purchase of Gaikai. Forward thinking for the future? I don’t see good developments on the horizon…

  37. jkz says:

    I bet the President of EA was just sick in his cornflakes.

    One thing is with discs, there was some encouragement to buy new ones as second hand discs might be scratched etc, with digital there is no degradation of quality. If trading was introduced to Steam for instance, their sales of older titles would be reduced. They might still make money from fees, but not great for the developers of the games.

    Then again, it has been said before that being able to trade older games in may encourage people to buy more new games.

    Imagine if you had seen the popularity of DayZ coming and bought up the market of Arma2:CO second hand copies, could of made a killing heh.

  38. SIDD says:

    Personally, I don’t care about the reselling.

    However …
    “right down to surely taking away the ability for companies like Valve and EA to block customers’ access to their purchased games for other infractions.” <– THIS!!

    Here's hoping for that one sticking without EA/Activision/Valve/whomever slime their way out of it!

  39. HisMastersVoice says:

    Well, it appears we’ll be getting 100 year licenses in Europe. Which might turn this victory into a rather nasty backstab…

    • AmateurScience says:

      Dagger of lawyers +5 to the kidney. Ouch.

    • jkz says:

      Presumably if you have a 100 year licence and you use it for 5 years, you could resell the other 95 years however.

      The copy you buy now is a licence really.

      • HisMastersVoice says:

        The ruling mentions indefinite licenses, not timed one.

        • jkz says:

          Indeed it does.

        • Koozer says:

          Is there no legal definition for ‘indefinite?’ If not, this seems like an incredibly easy loophole.

          • Jorum says:

            I imagine it would be “is there a clearly defined length of time, or termination date?” if there isn’t it’s indefinite.

            It’s worth noting that courts can (and will) rule on what a contract actually really is in effect, not what buyer and seller may say it is.
            So court could rule that a one-off -payment 100-year non-revocable licence/subscription is in practice a sale regardless of what EA call it.

  40. Lobster9 says:

    That’s okay, everything will just go Free-2-Play and rake in the cash from crappy $100 vanity item bundles. Why put time, money and effort into a long-term singular release you won’t be able to sell? When you can secure your families future by selling Hats, Bats and Non-Combat Cats until the heat death of the universe.

    • Ateius says:

      Just like how the film industry gives away DVDs for free, then rakes in the profits by letting you buy optional extra title screen backgrounds! After all, no point in doing it any other way when anyone can go and re-sell their copy of Titanic whenever they please.

      Oh, no, wait, they’re still selling things like a normal producer of goods. And all their children and families haven’t starved to death.

      • HisMastersVoice says:

        You might have noticed that buying a digital download copy of a movie is rather hard in many places. By design I’m sure.

        • Ateius says:

          And that affects my point how? The dedicated pirate can easily strip a movie from its DVD and distribute it digitally far and wide for all. Film industry still sells the things as a product and not a service or blank slate you need to pay extra to draw things on.

          • Lobster9 says:

            My point is that any big company is going to take the easiest option to making as much money as possible. While they -could- make a decent living by following the consumer ideal, the safer and more affluent path is going to be far more attractive to them.

            If the movie industry could get away with something akin to universal F2P, they would do so in a second. We have already seen a decline in big landmark singleplayer titles in recent years, and a lot of companies declaring themselves multiplayer only. I worry that if backed into a corner, the Triple-A side of the industry will abandon traditional single-release titles entirely.

            We may hate it when a game like Diablo 3 restricts itself to being a cynical always-online money grinder, but even if we shout until we are blue in the face, and swear never to buy their games again! It won’t stop other companies from seeking similar paths to ensure they are maximising their profits.

          • HisMastersVoice says:

            We’re talking about legal reselling here. It’s easier to resell a digital product from the comfort of your home than a physical one you need to ship out.

          • DodgyG33za says:

            I think if you read that stuff that scrolls up really fast on your DVD* you will find that this is not the case. It is neither a product or a service, but something in between just to suit them. For example. You can buy a new car, and put it in your front garden and charge people to come and see it. You can’t do that with your DVD.

            *At least that is what I remember. I opted out of physical media when I realised you could avoid the whole FBI warning message and forced credits thing, and as a bonus you got it for free.

  41. Fiohnel says:

    I wonder how this apply to online games. They’re providing “service” instead of product (like membership to golf club) and if you misbehave they can always pull the plug.

    With that logic, creating single player, offline game which is more like “product” anyone can resell is far less profitable compared to online game which is continuous “service”. I’m not sure I can call the death of single player game as consumer rights victory.

    • Fiohnel says:

      I can imagine platform like Steam using this opportunity to enable resell feature, but they’ll always have some cut from each transaction. Even fixed 1USD per resell which is split between Valve and original developer would be LOTS of dosh.

      • DodgyG33za says:

        But if it is something that you own, that they are facilitating access to, they have NO right to charge you for selling it.

  42. MortalWombat says:

    I sure hope this is going into an anti-DRM direction (so being able to download my Steam-purchased games DRM-free) rather than the way of “How can we best integrate the ability to transfer games through our otherwise locked-down system?”.

    I want to trade games again, just like in the old days… when will the markets learn to base their strategies on trust and quality and not on paternalism?

  43. The Sombrero Kid says:

    Does anyone want to buy floras fruit farm?

    • SkittleDiddler says:

      Someone take my copy too, please.

      I’ve also got a copy of Conflict: Denied Ops that I would love to be rid of.

  44. zhivik says:

    Here is a link to the ruling:

    http://curia.europa.eu/jcms/jcms/P_89099/

    The ruling applies to all sort of computer software, regardless whether it is a game, an Adobe program, or an operating system. It originated from a lawsuit filed by Oracle against a German online distributor. According to the ruling, once you have paid for a licence, you have full rights to transfer it. It does pose questions, though, for services like Steam, but also for smartphone apps, no matter if they are for iOS or Android.

    The main trick is implementation. According to the ruling, for example, if you have an iPhone game, you have the right to sell it someone else, as long as you no longer have it on your phone after the sale. However, this doesn’t force you to sell your entire account, you can keep everything else you have purchased. I don’t know, I think the only cloud-based services may survive if they go the Netflix route, requiring a monthly/annual subscription.

    The only type of digital retailers I see that currently abide the ruling are these that sell you installation files, GOG.com being the obvious example here. Yet, there are quite a few software developers/retailers who do the same, for example the Nero CD/DVD/BR burning software is offered this way. My point is that this is probably the only way to go, in order to make sure a distributor won’t be liable in the future, which provides full control over the product for consumers. Of course, publishers will be probably unhappy, because this will reduce control considerably, which makes me think they would rather go the subscription route, or with 10/20/50/100-year licences. Nowadays, a 10-year licence may be enough to make sure you won’t be able to use your copy too long, given how quickly hardware and OS change …

  45. Innovacious says:

    I don’t really see this as good news. Its going to have to completely change the way downloading games are handled. I can see it as opening the floodgates for all new levels of crazy DRM to make sure the game is completely gone from your system before you try and sell it on. Or perhaps just changing every game into a “service” where you aren’t buying the game, you’re buying a subscription or simply a license that allows you to play the game and not actually own it (some people argue that’s already how it works).

    Technically, there isn’t really a big difference between buying second hand games and pirating. If you pirate something: you get the product, the devs don’t get the money. If you buy something used: you get the product, the devs don’t get the money. But of course, if that was actually illegal, society would be a very different place. Buying and selling is a massive part of the way the world works and has always worked. Its weird how laws can technically contradict themselves but still somehow work. Well… how well laws “work” is debatable, but you catch my drift.

    • SanguineAngel says:

      Windows was my first thought when I read this. Their licence rules are banal, ridiculous and, above all, prohibitively expensive. I hope this gets things in order

  46. Issus says:

    It’s got a bit of a double edged sword feel to it.

    On the one hand it’s a consumer rights victory, and will hopefully prompt companies to be a bit more thorough with their QA testing, and might result in better games overall.

    On the other hand it could rush the industry wholeheartedly into the “games as a service” model (which I personally dislike), and those companies that can’t adapt to it quickly enough could suffer losses (in the same way that resale of boxed products causes reduced profits for the devs/pubs).

    • SanguineAngel says:

      If the game industry does turn that corner and manage to make games a service entirely, that will be the day I stop gaming altogether.

    • InternetBatman says:

      I don’t think that’s necessarily a bad thing. If this pushes them into the games a service model, we’ll see a greater evolution in the games as a service model. More importantly, it will create a hole in the market that will eventually be filled by a company operating on better business practices.

  47. best_jeppe says:

    As many probably have said I can imagine a sort of Steam Marketplace in the future where you can put up your games for sale and as soon as someone buys it dissapears from your steam library and you get money to spend on steam or something. Could be very interesting.

  48. AlexiValerii says:

    And now the EU has managed to knock the planet out of its normal orbit around the sun and we will eventully drift into space because off the combined lawyer armies of Valve, EA, and many more companies jumping up and down in rage….

    but as a more serious thing… maybe the Ship EU will do some good for the common people before sinking… and yes this is a very good thing but it will be challenged by companies with a lot of money to spend on Court bills… so this is a first victory in a very long series of court battles me thinks

  49. Misnomer says:

    As Valve, why would I see this as anything other than me being required to provide services to someone who didn’t pay for them? I guess you can say that the seller is selling the redownload, steamcloud…. services they bought from Steam, but I think Valve looks at this and says we are pretty much guaranteed 2 downloads for a single game purchase now instead of 1 for some percentage of sales. That increases the cost of our provided service so we must up our charge to developers (think back to DLC store policy change).

    Now developers don’t put things on as deep of a sale anymore because Valve must take a higher cut, other problems emerge because of resale undermining sales and cost of labor, and boom… no more Steam as the consumer haven it used to be.

    I just can’t see the U.S. companies going along with this… doing business in the EU will be like doing business in Asia games wise. Maybe worse.

    • MortalWombat says:

      Valve could simply charge you once for the game (DRM-Free CD-Key-Thingy, whatever…) and a little extra for downloaded bandwidth.

      • Misnomer says:

        Thus punishing gamers who purchase after patching? Or discouraging developers from large content patches and killing free dlc from here on out? Or maybe that balances out in a project 10 dollar sense for used sales? You see the knock on effects it has though. If you thought monetization was getting crazy already… if this ruling holds it may get even weirder and less consumer friendly.

    • Chris D says:

      I suspect Valve will see this as an opportunity. There’s now a digital pre-owned market and no-one is in a better position to take advantage of it than Valve.

Comment on this story

XHTML: Allowed code: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>