The secondhand market has been a bogeyman for game publishers lately, and it’s about to get a whole lot more scary. In a landmark case, the European Court of Justice has ruled that customers retain the rights to resell software, whether it’s on disc or – and this is the important bit – a digital download.
The decision was made against software vendor Oracle, who sued UsedSoft, a broker for used Oracle products, arguing that digitally distributed products are sold as licences, which prohibits resale. The court found that this arrangement is in contravention of copyright laws which do not give vendors control over used copies of their work.
“It makes no difference whether the copy of the computer program was made available by means of a download from the rightholder’s website or by means of a material medium such as a CD-ROM or DVD,” the court ruled. “Even if the rightholder formally separates the customer’s right to use the copy of the program supplied from the operation of transferring the copy of the program to the customer on a material medium, the operation of downloading from that medium a copy of the computer program and that of concluding a license agreement remain inseparable from the point of view of the acquirer.”
Or, basically, there’s no real difference between selling physical media and selling digital downloads, from a consumer rights perspective.
“The sale of a computer program on CD-ROM or DVD and the sale of a program by downloading from the internet are similar,” the court concluded. “The on-line transmission method is the functional equivalent of the supply of a material medium.”
Interestingly, things work somewhat differently in America, where courts have ruled that no-resale clauses in licence agreements are allowed.
The implications for the game industry are potentially significant. Although Valve operates out of America and Steam may (or may not) therefore be subject to local law there, games sold on EA’s Origin platform – which has regional presences and offices in Germany and France – will fall under this ruling in Europe.
The one concession granted by the court is that the original buyer must render their own copy “unusable at the time of resale”. I’m sure everybody will comply.