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Crikey: EU Rules You Can Resell Downloaded Games

A License That's Brill

Featured post 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.

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John Walker

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One of the original co-founders of Rock, Paper, Shotgun, I'm now a senior editor and general hero of humanity.

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