European Court Rules That Digital Games Can Be Resold By Consumers

The Court of Justice of the European Union ruled today in a case between the US-based company Oracle and the German-based company UsedSoft that software publishers can not restrict the resale of their products even if the software was sold via digital distribution.

In part the Court said:

“Where the copyright holder makes available to his customer a copy [either physical or digital] and at the same time concludes, in return for 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.”

For European gamers, this ruling basically means that consumers have the same resell rights for digitally delivered software that they have for software they purchased in a physical form, regardless of any language to the contrary in the End User License Agreement that was signed at the time of purchase. Additionally, the ruling applies to all digital distribution platforms and could impact services such as Steam, Xbox Live, the PlayStation Network, Nintendo’s eShop, Apple’s App Store, and Android Marketplace.

The one restriction that the Court placed on the resell of digital software was that the consumer would need to make their copy “unusable at the time of resale”, otherwise they would “infringe the copyright holder’s exclusive right of reproduction”.

This ruling only applies to Europe and [rightfully] will have no impact on any future ruling that could come down from a similar case in the US Court system. With that said, it will hopefully serve as a “shot across the bow” for video game publishers who have been pushing an all-digital distribution future as a way to combat used game sales.

Source: Eurogamer, Spiegel Online