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RPGWatch Forums » Comments » News Comments » EuroGamer - EU Court Rules that You May Resell Downloaded Games

Default EuroGamer - EU Court Rules that You May Resell Downloaded Games

July 4th, 2012, 22:30
Eurogamer has an article where they mention that gamers in the EU are now allowed to resell their downloaded games - so has the European Court of Justice decided in a ruling:
The ruling means that gamers in European Union member states are free to sell their downloaded games, whether they're from Steam, Origin or another digital platform - no matter what End User License Agreement has been signed. link to Eurogamer:
http://www.eurogamer.net/articles/
2012-07-03-eu-rules-publishers-cannot-stop-you-reselling-your-downloaded-games
Link to the ruling from the European Court of Justice:
http://curia.europa.eu/jcms/upload/docs/
application/pdf/2012-07/cp120094en.pdf

And a quote from the ruling by the European Court of Justice:
Where the copyright holder makes available to his customer a copy - tangible or intangible - and at the same time concludes, in return form 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.
According to Gamebanshee there's an article over at Gamer/Law that looks at this verdict:
Link to Gamer/Law:
http://www.gamerlaw.co.uk/2012/07/
legality-of-second-hand-sales-in-eu.html


They look at the ruling from a legal point and point out the issues and the problems in the verdict. If you want to read this, please click the above link. The important stuff regarding
the verdict is this:
Essentially, the court held that, under EU law, the right of software developers to control distribution of a piece of software – whether stored physically or digitally – is "exhausted" (i.e. lost) once the developer has been paid for it (known as a "first sale"). This means that developers lose the ability to prohibit any second hand sale.
However, if a second hand sale goes ahead then the first purchaser must stop using her copy of the software and render it unusable, because the developer's right to control reproduction of software is not exhausted on a second hand sale. In order to make sure that the first purchaser stops using the software she has sold on, it is permissible for the software developer to use "technical protective measures such as product keys".
The closing thoughts on this issue from Gamer/Law:
As you can see, this is a pretty big case (and probably one of the longest posts I've written on G/L!). I think it will have a sizeable short term impact, with a whole range of software businesses considering how it affects them. However, looking beyond that it seems clear already that the CJEU has posed more questions than it has answered and, in any event, nothing stays still in the world of tech and software. Will this case seem so epic in a year or three's time? Watch this space…
More information.
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July 4th, 2012, 22:30
or share them for free
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July 4th, 2012, 23:38
If you push the reasonning further it seems piracy can now indeed be called theft, since the untangible copy is legally being assimilated to a hard-copy equivalent. The notion of removal from inventory has been introduced.

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July 5th, 2012, 00:37
I see this as a great victory for consumers in the European Union. It basically means that publishers can't stop us from re-selling our disk copies of games, even if these copies are tied to say a Steam or Origin account if Origin or Steam has servers in one of the countries in the European Union.

It also means that EAs plan to stop the second-hand market by going "100% digital" has been stopped or haltered in the European Union at least. It further means that if I buy say Book of Unwritten Tales from an online digital distributor. once I'm finished playing this game, I can re-sell or trade it. And the ruling says that the person buying it, must be able to (re)download it from the seller's e.g. web-site again. Possibly getting a new product key as I interpret the bit about "the technichal measures".

It also means that at least in the European Union and possibly in the connected countries (such as Norway or Switzerland) EA can't prohibit second sale of their games anymore, whether they be sold on disc on sold via Origin, their digital distrubution channel.

If you look further in the ruling, this also applies to any patches etc. put upon the original game, this means it must apply to DLC as well….

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July 5th, 2012, 01:36
I disagree. Publishers want control of their products and will hasten the move to subscription or freemium models that either can't be resold in any meaningful way or where there is ongoing revenue.

You've also potentially introduced an impost on indies, who might need to spend more money and infrastructure supporting customers that never paid them.

You haven't stopped EA at all - you've potentially forced them to move faster.

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July 5th, 2012, 02:42
I don't see how this pushes devs to push out more freemium games. there is too much competition in that market and we know people are willing to shell out $50 still for a new game.

if the digital distributors are smart they will become ebays and take a percentage of the resale market.

sure it will drive costs down, but it won't hurt Steam who decide what price to allow in the first place. Now this is taken out of their hands and given to a 3rd party owner.

Since a digital game is essentially a zero cost product the market will drive the price of the game, the distribution channels will take a percentage, lower prices, more gamers, market increases, win-win.

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July 5th, 2012, 11:14
Originally Posted by Dhruin View Post
You haven't stopped EA at all - you've potentially forced them to move faster.
Or into a different direction (OnLive, anyone ? Server-streamed games like MMOs ?).

Edit : which would mean that video games will go through a MASSIVE shift of definition :

They are no more games -

- they are services.

Imagine that !
"Playing" becomes a service - something where you are put rather into the rle of a passive customer - than it stays as an active role of a player ! - And owner of a game, not to forget.

It's the same as if - just as an example to illustrate this massive shift of meaning/definition - board games will not be sold anymore, and you can only get - and play !!! - them in stores/houses operated by board games publishers, and have to give them back there, once you leave the building.

The result would be total control and total commercialization of "play".

Which is in a way like Big Brother. Only that it would be in regrd to "playing" and o "games", in contrast to actually EVERYTHING in the original "1984" novel by George Orwell.

This would be a step further into the "Commercialization Of Everything".


Edit : And, what nobody realizes : The direct developers are always left out. It's always the middle man induustry (we say "Verwertungsgesellschaften" here) that want commercialization of "play" !

Like they want total commercialization of things like Music, too. And Patents.

Which is … Commercialization of Ideas. Of Thoughts, if you think it to the end. Because music compositions, game ideas, patents… All of that is basically nothing but thoughts, ideas, nothing materialistic, because you cannot grab it with your hands.

And this results in the commercialization of non-materialistic areas, as part of the Commercialization Of Everything.

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Last edited by Alrik Fassbauer; July 5th, 2012 at 11:24.
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July 5th, 2012, 11:59
Originally Posted by Alrik Fassbauer View Post
Edit : And, what nobody realizes : The direct developers are always left out. It's always the middle man induustry (we say "Verwertungsgesellschaften" here) that want commercialization of "play" !
I disagree. It's the need for developers to be able to earn a living developing (rather than having to have a paying job taking up creative time and energy in addition to making games) that drives the need for games to be commercially sold. The role of publishers is not as a middle man, rather as a funder to enable development time in advance of receiving revenue from sales. There's nothing stopping developers applying for other sources of funding instead/as well, but publishers are generally good at what they do and offer a competitive service compared to say a bank.

Like they want total commercialization of things like Music, too. And Patents.

Which is … Commercialization of Ideas. Of Thoughts, if you think it to the end. Because music compositions, game ideas, patents… All of that is basically nothing but thoughts, ideas, nothing materialistic, because you cannot grab it with your hands.
I fear you're getting a bit idealistic Alrik Patents are, in general, a good thing, and when used correctly enable research and idea sharing when it wouldn't otherwise have occurred.

And this results in the commercialization of non-materialistic areas, as part of the Commercialization Of Everything.
The only realistic alternative is state-funded development. This certainly has a role in some areas - music is a good example, but it can generally exist alongside the private sector because, well, do you want games only developed with government funding?
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July 5th, 2012, 13:56
Originally Posted by Alrik Fassbauer View Post
Imagine that !
"Playing" becomes a service - something where you are put rather into the rle of a passive customer - than it stays as an active role of a player ! - And owner of a game, not to forget.

It's the same as if - just as an example to illustrate this massive shift of meaning/definition - board games will not be sold anymore, and you can only get - and play !!! - them in stores/houses operated by board games publishers, and have to give them back there, once you leave the building.

The result would be total control and total commercialization of "play".
Commercialization of all leisure time. Indeed.
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July 5th, 2012, 20:46
This is a fantastic development! I have long decried the fact that our digital purchases were given special treatment taking away consumer rights. I see no reason that game/software publishers should get special rights that no other industry in the world enjoys that allow them to take away their customers' resale rights.

Most people that seem to have an issue with this ruling don't cite the ruling as a problem, but what publishers will do to try to get around it. Reminds me of back in the US when they a few years back passed banking regulations to keep greedy bankers in check and the banks scrambled beforehand to rip off as many people as they could and people (mindbogglingly) blamed the legislation for the bankers actions as if the bankers had no control over what they did. Whats with people blaming the law when the asshole is the corporations and banks that try to screw people?

Perhaps if they've gone this far with the law, they will interpret it properly and in a consumer friendly way to count subscription services as game purchases and the like. I sincerely doubt every company is going to go free to play to get around this and any company that does so I have no issues boycotting their products. Traditional non-subscription games will always be made.

Another argument I keep hearing is that iof we are allowed to trade/sell our used digital games, publishers will end sales and deep discounts because people will buy them and resell once the price goes back up. Well… what? Just like how there are never sales and deep discounts of physical goods where people have been buying low and selling high for hundreds of years? I really don't think people think through these positions they are taking.
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July 5th, 2012, 20:51
Originally Posted by regomar View Post
This is a fantastic development! I have long decried the fact that our digital purchases were given special treatment taking away consumer rights. I see no reason that game/software publishers should get special rights that no other industry in the world enjoys that allow them to take away their customers' resale rights.

Most people that seem to have an issue with this ruling don't cite the ruling as a problem, but what publishers will do to try to get around it. Reminds me of back in the US when they a few years back passed banking regulations to keep greedy bankers in check and the banks scrambled beforehand to rip off as many people as they could and people (mindbogglingly) blamed the legislation for the bankers actions as if the bankers had no control over what they did. Whats with people blaming the law when the asshole is the corporations and banks that try to screw people?

Perhaps if they've gone this far with the law, they will interpret it properly and in a consumer friendly way to count subscription services as game purchases and the like. I sincerely doubt every company is going to go free to play to get around this and any company that does so I have no issues boycotting their products. Traditional non-subscription games will always be made.

Another argument I keep hearing is that iof we are allowed to trade/sell our used digital games, publishers will end sales and deep discounts because people will buy them and resell once the price goes back up. Well… what? Just like how there are never sales and deep discounts of physical goods where people have been buying low and selling high for hundreds of years? I really don't think people think through these positions they are taking.
Keep in mind, there is nothing in the ruling that says Steam and Origin have to suddenly make it technically possible to resell your licenses to third parties, even if the concept of reselling licenses is considered legal. Using cracks to disable your DRM or selling your Steam account is not suddenly legalized as a result of this ruling, as you promised not to do those things when you signed up for Steam.

Incidentally, you can already purchase games for trading on Steam during deep discount sales and then later trade them for other games or virtual items, you just can't trade games you've already played.
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July 5th, 2012, 21:09
I dunno Count. I think it's really not that simple. In particular, the Steam items you mentioned are actually add-ons to the original digital product. These add-ons are designed to prevent transfer of the digital product to a different party. As such, they could be considered products designed to restrict free trade with a net result that Steam could be subjected to a substantial penalty unless the restrictive products are removed from the digital product.

Seems to me the more interesting questions do go to slightly different digital products, such as a game that is delivered only as part of a streaming service subscription. In that case, it seems to me that the game might be viewed in the same light as multimedia entertainment, e.g., movies and the like, currently delivered via cable subscription. No one argues that the customer has the right to record and sell multimedia delivered in this form.

However there still could be a question whether a consumer who purchased a prepaid subscription to a cable service could be restricted from transferring that subscription to someone else. Still even that question wouldn't arise in connection with a pay-monthly subscription service. This might be the future of video games.

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July 5th, 2012, 23:08
I'm not sure where this is going, but reselling digital copies is so much mre convenient than say, used books or DVDs that it may shift the market towards waiting for available resells. If it hurts developpers too much, then it will drive them under.

Also it can act as a cover for people selling unlegitimate copies, disguised as legitimate somehow. That doesn't sound too terribly hard. That can force publishers into implementing more creative DRM.

This may look like a way to shave off a few bucks from a gaming budget, but the collateral damage could potentially outweigh the benefits.

Finally, as an indie that doesn't much feel like putting ressources into copy protection, this kinda freaks me out. But that's just me.

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July 6th, 2012, 00:03
I haven't even read, much less studied the complete ruling of this case. It may leave room to get around the specifics of the case by numerous ways, such as for example where the publisher clearly states that the product is not sold but only leased to the customer, and requires a customer acknowledgement before the game will work.

Creative European lawyers will undoubtedly find ways to minimize the impact of the case on their game publisher clients. Such approaches will undoubtedly be discussed in trade journals as they are introduced for use in the market.

You make some pretty good arguments from the standpoint of an indie. In general, this law is intended to promote competition and free trade. To the extent that the ruling is imposed too harshly on small independent developers, it could result in those developers exiting the business, resulting in a decrease, rather than an increase in free trade.

To the extent you believe the ruling could harm the European consumer, work hard to make your views, and the dangers to indie developers, known. Your efforts could tip the balance.

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July 6th, 2012, 05:14
This ruling to me is a big "Duh!", no video game maker should have any rights to prohibit future second hand sales of their product after the original sale has been made. I understand why the big game makers love the arrangement of trying to wipe out the used games market, but come on, consumers aren't slaves to them. If some video game companies can't survive being in the same kind of market place that applies to most every other product in the world, then they should go bankrupt and not be in business to begin with.
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July 6th, 2012, 05:14
this case is mindboggling. as a passive consumer i love the idea, but it has such deep ramifications that i cant see it holding up. iOS apps, music, etc… it would be a really crazy development. ai presume that we will se publishers move towards getting around this any way possible. Like making transfers awkward, insecure, useless. That said, the music plugins market (much of it) allows resale. it works pretty well, although with varying degrees of security.
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July 6th, 2012, 07:32
Originally Posted by Charles-cgr View Post
I'm not sure where this is going, but reselling digital copies is so much mre convenient than say, used books or DVDs that it may shift the market towards waiting for available resells. If it hurts developpers too much, then it will drive them under.
You mean that players would be able to control their consumption impulses and no longer respond to the video game marketing because there is a change in law?

Flash sales which offer already a large decrease in price exist. How large the impact is on players' impulses?
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