Two rulings -EU allows reselling of software & game licenses

[borgs8472]

Both of these in my Reddit feed today, coincidence? Apparently so. First of all

Oracle loses court fight over software resale rules

A European court has ruled that it's permissible to resell software licenses even if the package has been downloaded directly from the Internet. It sided with a German firm in its legal battle with US giant Oracle.

The European Court of Justice on Tuesday ruled that used software licenses may generally be resold by individuals or companies. The Luxembourg-based court thus sided with the German firm UsedSoft in a protracted legal battle with US software giant Oracle.

The ruling made it clear that trade in used software was permissible even if the software had not been shipped on a physical medium such as a CD or DVD, but had been digitally downloaded from the Internet.

One of my old companies got in trouble from the Adobe licencing police for not having the boxes / physical media for for their legally purchased software products with unique licences and had to repurchase a whole bunch of stuff again. Hopefully this ruling will help out companies who get into a similar position?

There are probably further implications of this ruling I've not considered.

European Courts Rule In Favor Of Consumers Reselling Downloaded Games

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.

To be honest it's a bit legalese for my liking, but the implications are significant. I one read on Reddit about a guy who created a new steam account for every game he purchased so that he could resell the game when he was done. Fiddly? Yes? But money saving? Immensely!

With the physically game resale market under attack by one-use licensable content, the ability to transfer such licenses should keep it going for sometime, even if the physical media part of the channel goes away.

The next challenge, seeing if these laws effect the US markets where many of these development houses are based and how much they will cry bloody murder over this.

[Duke]

First point, there was just one ruling (as far as I'm aware), the Forbes article juts looks at it from the point of view of gaming, but still links to the Oracle judgment (which can be found in various place.

So, having skimmed the judgment, it concerns the "exhaustion of the distribution right after a first sale", basically, if you:
1) acquire software from the Internet, without infringing copyright, and
2) have paid an amount intended to compensate the copyright owner,
3) for a licence to use the software for an unlimited time,
you are considered to "own" the software-and-licence, and can sell or transfer them on (but not copy them).

It seems that this is a right, rather than a defence to copyright infringement, so cannot be contracted out of explicitly, but there doesn't seem to be any requirement for a copyright owner to make it easy - they just can't stop it (unless they use DRM, which it is illegal to circumvent in most of the EU, even for legal purposes).

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From a legal point of view I don't like this ruling. It breaks the clear divide between a licence or contract, and the sale of an item of property (such as a CD). The US has found itself in all sorts of problems (including the Autodesk case) due to blurring this line, to the point where software becomes property - I don't think it is the right way to go.

In terms of sorting out oppressive contracts, on the other hand, and encouraging used sales (thus opening up secondary markets and whatnot) this could be a good thing, although I imagine a lot of publishers, software companies, and online distributors of music and so on will be very nervous about this.

The other point is that this ruling (if not the principle behind it) would be trivial to circumvent; by making licences time-limited. If this does become a major issue, expect to see more software available for n months only, or for a recurring payment. I'm not convinced that would be a good thing.

[borgs8472]

I expect the reaction to this is going to be more of 'indefinitely renting' games and software, rather than 'selling' it. Will this require very different sales tactics? More horribly restrictive EULAs? More DRM and copy protection technology (I expect so).

I too worry that by trying to give the same resale rights to products are are far more overtly licensed but not sold may hinder the digital download market.

As per a discussion at work today, let's say you now have the 'right' to resell all your games you have on Steam. You cannot currently do this without breaking the EULA in various different ways at the moment. Much fall out still to come I believe.

[Gavman]

ah but dont forget EULAs are unenforceable in most EU countries borgs so that tactic would fail...