EU Court Legalizes Selling "Used" Digital Games

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EU Court Legalizes Selling "Used" Digital Games

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The EU Court has overruled the no-resale clause in software EULAs.

Used games have won quite a legal victory today in the European Union. Gamers' ability to resell their games has been on the decline as more and more games have been either entirely or partially digital. After all, End User License Agreements - the semi-legal pseudo-contracts that most people blindly agree to while installing their latest digital purchase - often expressly forbid the customer from re-selling their digital copy. That changes with today's ruling from the Court of Justice of the European Union, which has stated that buying and selling digital copies of any product is legal regardless of what the EULA for the product states.

While the original provider of the product - say, Ubisoft or EA - has no obligation to support the resale of its digital games, the ruling means that a third party company could swoop in and legally facilitate used digital software sales, at least in the EU. Whether or not such a company will form, or if a current distributor such as Valve or Good Old Games will step up to the task, is currently in the realm of pure speculation.

Regardless of whether used digital games become a reality, the ruling is a major blow to the power of the EULA, which has caused gamers more than a few problems in the past. Whether it's the Steam user who almost lost his entire library over a PayPal dispute or the EA customer who earned a ban from all his EA-published games over a forum comment, these high-profile incidences have called into question whether or not customers who buy software actually own the copy they purchased or are merely licensing the use of the game. Today's ruling clarified this question in favor of the customer; the Court explained that if a copyright holder both distributes a copy of the product and grants the customer unlimited uses of the product, the transaction "involves a transfer of the right of ownership of the copy." That assertion alone could mean a lot for gamers' digital rights as consumers in the future, particularly if the ruling is mirrored in other countries.

Source: CURIA via Eurogamer

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I'm not sure how that would work out, but it sounds cool.

I'm wondering though; What will developers pull to prevent this from ruining their business?

DRM couldn't possibly get ANY worse can it? *jinxed it*

Oops. Sorry. :P

Why not just go straight ahead and legalize piracy?

Because when it comes to passing on purely digital content, there really isn't much of a difference.

JediMB:
Why not just go straight ahead and legalize piracy?

Because when it comes to passing on purely digital content, there really isn't much of a difference.

I am okay with this.

Another step closing to treating digital property as actual property, that you own after you purchase, with all the rights and permissions you normally associate with anything you actually own. I'm good with this.

JediMB:
Why not just go straight ahead and legalize piracy?

Because when it comes to passing on purely digital content, there really isn't much of a difference.

The difference is that when you've copied a game to someone else as part of a resale, you are obliged to destroy your own copy.

I love it when EULA's get taken down a peg. Hopefully a similar ruling happens in the US at some point.

JediMB:
Why not just go straight ahead and legalize piracy?

Because when it comes to passing on purely digital content, there really isn't much of a difference.

Surely there'd be a way of making sure any one game can only be used on one console / computer at a time? The only differency would be that the designated 'owner' would be able to change.

Of course this is all just conjecture, any I have a horrible feeling that as yet unknown DRM horrors maybe be lurking behind the corner, but at least in theory, this looks like an overwhelmingly positive step.

Oh well all they have done is make Californian lawyers richer. As it stands normal EULA terms in the EU ignore the German courts by saying all sales in the EU take place under UK law. They will just say all EULA sales take place under US laws. Net result London law firms get less work and US law firms get more.

JediMB:
Why not just go straight ahead and legalize piracy?

Because when it comes to passing on purely digital content, there really isn't much of a difference.

This difference is that in this case, your legally obligated to deactivate your own copy.

Man, the EU just- Jeez. You never know what crazy crap these guys are gonna do next. One second it's ACTA the next it's something like this.

I take back ALL the pessimistic stuff I've said in the past over the inevitability of 'games as a service'. I'd never have believed in a million years that even the inconsistent clowns at the EU court would pull this wedgie on international copyright law.

If this holds against the inevitable clusterfuck of opposition then there are interesting times ahead. Bring on the popcorn!

albino boo:
Oh well all they have done is make Californian lawyers richer. As it stands normal EULA terms in the EU ignore the German courts by saying all sales in the EU take place under UK law. They will just say all EULA sales take place under US laws. Net result London law firms get less work and US law firms get more.

If you're going to be an Albino Miniature Giant Space Hamster, at least have a picture of one.

Here, take this. image

newdarkcloud:

JediMB:
Why not just go straight ahead and legalize piracy?

Because when it comes to passing on purely digital content, there really isn't much of a difference.

This difference is that in this case, your legally obligated to deactivate your own copy.

But it's still a matter of passing off a copy of copyright-protected software to another person.

Not to mention that trying to apply the physical "used" label onto digitally distributed/replicated data is absurd.

Interesting new thing, however this can only be enforced with more online-drm. And we know how people love then.

albino boo:
Oh well all they have done is make Californian lawyers richer. As it stands normal EULA terms in the EU ignore the German courts by saying all sales in the EU take place under UK law. They will just say all EULA sales take place under US laws. Net result London law firms get less work and US law firms get more.

Nope.avi.

Go read your European law and how it works.

JediMB:
Why not just go straight ahead and legalize piracy?

Because when it comes to passing on purely digital content, there really isn't much of a difference.

Wow. So what company paid you to come post here? Either that or I really hope that's some major hyperbole going on there, because.... wow.

Europe, fuck yeah! Coming again, to save the mother fucking day yeah!

Yay for consumer protection!

Hookah:

albino boo:
Oh well all they have done is make Californian lawyers richer. As it stands normal EULA terms in the EU ignore the German courts by saying all sales in the EU take place under UK law. They will just say all EULA sales take place under US laws. Net result London law firms get less work and US law firms get more.

Nope.avi.

Go read your European law and how it works.

Small rather important point its an already well established practice in INTERNATIONAL contractual law and the WTO that parties to contracts can decide what jurisdiction that contract falls under. Normally its the UK law firms that benefit from this, all commercial contracts in Dubai fall under UK law for instance and most large scale construction contracts are often done under UK. After this case it US firms that will reap the rewards for a change. Then again you are the guy that accused a staff writer of being ignorant of history when he mentioned Byzantium in the context of Rome total war..

WhiteTigerShiro:

JediMB:
Why not just go straight ahead and legalize piracy?

Because when it comes to passing on purely digital content, there really isn't much of a difference.

Wow. So what company paid you to come post here? Either that or I really hope that's some major hyperbole going on there, because.... wow.

Hyperbole meant to highlight that the very concept of "used" data is ludicrous.

Not to mention that unless resale of digital games is handled directly by the digital distributor, you're technically committing copyright infringement when you pass the software on to someone else.

dontlooknow:
Surely there'd be a way of making sure any one game can only be used on one console / computer at a time? The only differency would be that the designated 'owner' would be able to change.

Its possible, but this again gets in the territory of DRM by restricting what a user could and could not do with target software--and that is a problem with a lot of costumers. The only way possible to enforce this would be to have an online check with a server to see which account has what game, but that could get expensive (and always-online DRM is one of the worst sins right now).

I imagine a combination of the auction house from "Diablo III" but with the service of "Steam/GoG" might work with digital products. You can only buy the games from their service, but you could then "trade" it back in for actual cash or in-store credit. Or sell the game to your friends through a controlled money transfer system provided by the service (similar to Ebay), so sales doesn't have to be done in possible phishing attempts. I imagine this would be a great business opportunity, but it might be awhile before we see something like this happen.

JediMB:

newdarkcloud:

JediMB:
Why not just go straight ahead and legalize piracy?

Because when it comes to passing on purely digital content, there really isn't much of a difference.

This difference is that in this case, your legally obligated to deactivate your own copy.

But it's still a matter of passing off a copy of copyright-protected software to another person.

Not to mention that trying to apply the physical "used" label onto digitally distributed/replicated data is absurd.

I don't see why. You buy a license to play a game. Then, you decide later to sell that license to somebody else. Now they can play it and you cannot. In order to play the game, you have to go over to his house and play (assuming he will let you) or go out a buy a license again. Since we can assume that this license is, for all intent and purposes, property, we can subject it to the same barter laws all other property is subject to.

It is good to see that, regardless of whatever idiocy publishers come with, property remains property. At least in the UE. I'm thankful I am an european citizen.

JediMB:
Why not just go straight ahead and legalize piracy?

Because when it comes to passing on purely digital content, there really isn't much of a difference.

When you sell a physical copy of a game/film/music CD it's based on good faith that while you could keep a copy for yourself you won't this is just the same thing.

Kumagawa Misogi:

JediMB:
Why not just go straight ahead and legalize piracy?

Because when it comes to passing on purely digital content, there really isn't much of a difference.

When you sell a physical copy of a game/film/music CD it's based on good faith that while you could keep a copy for yourself you won't this is just the same thing.

There you go again, using 'logic' and 'reason' to counter a perfectly invalid argument.

Oh yay, Finally. Some sense.

Kumagawa Misogi:

JediMB:
Why not just go straight ahead and legalize piracy?

Because when it comes to passing on purely digital content, there really isn't much of a difference.

When you sell a physical copy of a game/film/music CD it's based on good faith that while you could keep a copy for yourself you won't this is just the same thing.

But in the case of an all-digital product, a copy is indistinguishable from an "original".

...However, now you've got me wondering if there's a market for used MP3 files.

JediMB:

WhiteTigerShiro:
Wow. So what company paid you to come post here? Either that or I really hope that's some major hyperbole going on there, because.... wow.

Hyperbole meant to highlight that the very concept of "used" data is ludicrous.

Not to mention that unless resale of digital games is handled directly by the digital distributor, you're technically committing copyright infringement when you pass the software on to someone else.

Although I kept legal language out of the OP, the ruling specifically deals with copyright law - it states that the copyright holder exhausts their exclusive distribution right upon first sale (provided that, as mentioned in the OP, they grant unlimited uses of the software and provide a copy to the customer), meaning that re-distributing the copy you bought does not infringe upon the original copyright. The ruling specifically states that the new license holder can download the software from the original copyright holder because those were the details of the case between Oracle and UsedSoft, but I do not believe this excludes obtaining the copy from the license seller directly.

dontlooknow:

JediMB:
Why not just go straight ahead and legalize piracy?

Because when it comes to passing on purely digital content, there really isn't much of a difference.

Surely there'd be a way of making sure any one game can only be used on one console / computer at a time? The only differency would be that the designated 'owner' would be able to change.

Of course this is all just conjecture, any I have a horrible feeling that as yet unknown DRM horrors maybe be lurking behind the corner, but at least in theory, this looks like an overwhelmingly positive step.

What I imagine would happen would be that every game comes with a key (even digital games over steam now), and should you choose to sell a game, you're key is simply deactivated and a new one is generated for the buyer, or the same key, and yours is deactivated on their installation.

Also I'm curious how that unlimited use part will act out with respect to purely online games that have company supported servers.

kitsuta:

JediMB:

WhiteTigerShiro:
Wow. So what company paid you to come post here? Either that or I really hope that's some major hyperbole going on there, because.... wow.

Hyperbole meant to highlight that the very concept of "used" data is ludicrous.

Not to mention that unless resale of digital games is handled directly by the digital distributor, you're technically committing copyright infringement when you pass the software on to someone else.

Although I kept legal language out of the OP, the ruling specifically deals with copyright law - it states that the copyright holder exhausts their exclusive distribution right upon first sale (provided that, as mentioned in the OP, they grant unlimited uses of the software and provide a copy to the customer), meaning that re-distributing the copy you bought does not infringe upon the original copyright. The ruling specifically states that the new license holder can download the software from the original copyright holder because those were the details of the case between Oracle and UsedSoft, but I do not believe this excludes obtaining the copy from the license seller directly.

Alright. Thanks for that extra piece of information.

Still, without some sort of license management system (meaning DRM), it would be practically indistinguishable from piracy.

Dear god, the laws in EU are pro-consumer and not pro-corporation? man i almost don't want to live here anymore.

Great news! Its a big win for customers/gamers in Europe and as its usually wiht high court rulings it will probably carry over in the future to other countries. Since when this same issue arises for instance in the States they will look at the EU case and use it as example.

And really if i pay so much money for my games and down own them they what the fuck. . . . ?

albino boo:

Hookah:

albino boo:
Oh well all they have done is make Californian lawyers richer. As it stands normal EULA terms in the EU ignore the German courts by saying all sales in the EU take place under UK law. They will just say all EULA sales take place under US laws. Net result London law firms get less work and US law firms get more.

Nope.avi.

Go read your European law and how it works.

Small rather important point its an already well established practice in INTERNATIONAL contractual law and the WTO that parties to contracts can decide what jurisdiction that contract falls under. Normally its the UK law firms that benefit from this, all commercial contracts in Dubai fall under UK law for instance and most large scale construction contracts are often done under UK. After this case it US firms that will reap the rewards for a change. Then again you are the guy that accused a staff writer of being ignorant of history when he mentioned Byzantium in the context of Rome total war..

Nope.avi.

Go read your European law and how it works.

JediMB:
Alright. Thanks for that extra piece of information.

Still, without some sort of license management system (meaning DRM), it would be practically indistinguishable from piracy.

I would definitely agree, and I actually think that Valve (or, possibly more likely, GOG) will jump all over this for that reason. Since they're distributors and not purely publishers, they stand a lot more to gain from implementing a "used" game re-distribution system. And if gamers put up with GameStop's tradeback system they can probably handle whatever Valve can come up with - Steam is already generally regarded as gamer-friendly despite the fact that, when it comes down to it, it's basically a giant piece of DRM.

albino boo:
Oh well all they have done is make Californian lawyers richer. As it stands normal EULA terms in the EU ignore the German courts by saying all sales in the EU take place under UK law. They will just say all EULA sales take place under US laws. Net result London law firms get less work and US law firms get more.

Kay... so im allowed to sell guns in germany because i claim i sell them under US law and not german law?

Sorry doesnt work that way... they can write what they want into their EULAs but as soon as they sell a product in germany they are bound to german law.

You see thats the funny thing.. they can try and write whatever legal BS they want into their Eulas but if it conflicts with german consumer laws you bet that a german court is not going to say "whoops.. sorry cant help you.. thought you bought this thing in germany it clearly says that we are not responsible for it even thought we are in germany and the company has no business to tell us we arent responsible for this case in the first place"

So yeah.. EA and CO. just write this into their EULAs to scare people away from suing them... same with origin telling you that if you accept their EULA youre putting down your right to sue em. That shit doesnt fly in germany as far as i know.

You see the example you brought up is company vs. company... this here is company vs. consumer and is a whole different beast.

This does make me wonder though, if i "traded in" a steam game which i have installed on my laptop which is rarely connected to the internet, so the games are not updated regularly, would i be able to continue to play my "traded in" game?

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