Used Software Can Be Sold, Says EU Court of Justice

Sique writes "An author of software cannot oppose the resale of his 'used' licenses allowing the use of his programs downloaded from the internet. The exclusive right of distribution of a copy of a computer program covered by such a license is exhausted on its first sale. This was decided [Tuesday] (PDF) by the Court of Justice of the European Union in a case of Used Soft GmbH v. Oracle International Corp.."

Comments

Absolutely amazed by this decision

[RoverDaddy]

This has enormous implications. I just wonder how many threats to 'take their ball and go home' will ensue, followed by threads of 'I'm getting my dad (the US government)'.

Re:Absolutely amazed by this decision

[cpu6502]

What can the U.S. government do against the whole of the E.U.? I suppose this decision means I can sell my Microsoft Office 2010 license on ebay. Yay! I never use the software anyway. (I wonder if I can sell ebooks too? Or maybe just the whole amazon account; ebooks and all.)

Re:Absolutely amazed by this decision

[Xest]

I wonder if this has any implications for game developers?

I've always though the tactic of enabling multiplayer (and nowadays even some single player) via a code that's become prevalent in just about every console game over the last year or two really stank of a complete breach of the precedent of the right to sell your content on second hand.

Similarly, I wonder if it has any implications for Valve, with whom you're forced to activate some games with to prevent resale?

I know a lot of people here will defend Valve etc., but really, computer software is about the only product I know of whereby you're artificially prevented from selling on in the same working manner you can consume it in second hand. Toasters, clothes, cars, music CDs, DVDs, books, plants, furniture, washing machines - just what other products are there other than games that have these artificially restrictions in place to prevent resale? Should they really be allowed to get away with it by simply claiming they're anti-piracy measures when we all know the pirates nearly always get their copies earlier precisely because they don't contain these measures?

Re:Absolutely amazed by this decision

[AmiMoJo]

Game developers already have a solution. Make the game require internet access with a single use code. You can sell the game but it is worthless without a new code.

Similarly you can be the next version of RandomApp Pro 2013 will require online activation tied to your email address and with no way to change or update it.

Re:Absolutely amazed by this decision

[L4t3r4lu5]

Valve is in a great position regarding this. You can already gift games to other players; They just need to enable gifting of currently owned games and Bob's your mother's brother. Hell, it may occur that Steam gets more subscribers as games are gifted to people who aren't currently subscribed. Licenses held in escrow until someone creates an account to redeem them? PayPal does that with money already.

Re:Absolutely amazed by this decision

[Xest]

"Assuming you mean online multiplayer, the developer/publisher provides the service that allows the multiplayer to happen. It's underhanded, true, but also understandable, as (usage of) the service is licensed separately to the game itself."

Does it? XBox Live costs me £40 a year and multiplayer on every single game I've played bar Battlefield 3 is peer to peer. I don't disagree with you if we're talking about something like WoW where there is significant server overhead, I don't even disagree with something like BF3, though ironically with BF3 not only have they introduced a subscription service, they've actually stopped providing 99.99% of their servers and instead charge people to run their own. I guess I can't fault them as it works, but certainly on consoles there's negligible expenditure on multiplayer costs - the bulk of it is paid for by Microsoft by way of the Live infrastructure rather than the games companies themselves.

It's frustrating too, because me and my girlfriend both enjoyed Need for Speed: Hot Pursuit, we both have an XBox, and we both have a Live subscription, yet because of the activation code she can't play multiplayer whilst I'm playing a different game on my console without paying yet another £10 despite the fact we already paid for the game first hand.

Effectively we've reached a point now where you have to actually buy a copy of many games for every person in the house that wants to play multiplayer, rather than where you'd just need a copy per household previously. We're quick to criticise the music industry because they've been trying to make us rebuy content we've already paid for for years now, but we seem to have sleepwalked into allowing games companies to get away with exactly this.

Re:Absolutely amazed by this decision

[aztracker1]

Oh, you mean like video rentals? guess you don't do that either...

Well of Course

[jasper160]

Why not? I can re-sell my car, books, records, and cassettes. Software should be no different.

Re:Well of Course

[w.hamra1987]

well... because software is not a physical object like cars, books and records... you can not "own" it in the sense of ownership you do to physical object... but wait... all the stupid *intellectual property* laws enforced in the last few decades... claimed IP can be owned like physical property... hmm... someone is struggling with basic logic in the capitalism and mass theft department...

Re:Well of Course

[mrchaotica]

The argument is naturally is that you own the book but you are only licensed to use the software. Still this ruling will annoy a lot of US Companies.

That argument is bullshit and always has been. It's nice to see a court (albeit European) finally recognize it for once!

Re:So what about the stores?

[TFAFalcon]

What does that have to do with it? This ruling is about people being allowed to sell software copies they own to other people, not forcing stores to buy those copies.

Re:So what about the stores?

[imagined.by]

In Europe, or at least in Germany, this never was really the case. Simple reason: You can only read the license agreement AFTER you open the box, which makes everything in the EULA null and void. Common sense if you ask me.

Re:Diablo 3 refunds?

[Colonel Korn]

I hope so... I know it won't happen in the US.... Which actually says a lot. As Americans we are used to getting what we paid for. If something sucks, we're entitled to our money back.

No refunds in the US, but you can still sell it. I've made a separate Bliz account for each of their recent products and sold the account when I'm done with it. For their two most recent games, "done" came two days after purchase.

Re:Just in time...

[Miamicanes]

Upgrades are a special case. When you upgrade "most" products, you don't get another license... the old one is extinguished the moment you activate the new one.

Also, did the court rule that consumers have the *right* to buy & sell used licenses, or merely that it doesn't constitute infringement? Big difference -- in case 1, the licensor must cooperate. In case 2, they can't sue you, but can use DRM to render the used license worthless.

AutoDesk will be pissed

[Overzeetop]

They have fought tooth and nail to keep their "software as a revocable license" model so that they can continue to extort huge sums of money from the industries they service. I expect them to throw their resources at legislative change to "fix" this European problem.

Re:AutoDesk will be pissed

[rbrausse]

I expect them to throw their resources at legislative change to "fix" this European problem.

you're dead-on.

Oracle's press release says:

We trust that this is not the end of the legal development, and that the EU Member States as well as the European Commission will be doing all they can to protect innovation and investment in Europe’s technology industry and to prevent business models which threaten both.

or - in short - WE HATE YOUR LAWS. CHANGE THEM.

Re:Just in time...

[Sique]

The core ruling can be found at the end of Page 1:

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.

So the Court ruled that the buyer of any non-expiring software license (consumer or not) has the ownership of the copy and is untrestricted in his right to sell the copy.

I wonder what happens with volume licenses?

[shione]

1. buy laptop with a forced copy of windows
2. extract windows key
3. rplace windows with Linux
4. sell windows on ebay
5. ????
6. profit!

Interestingly, if you could get more than $3 from selling windows which you most probably could, it would beat begging the oem to refund you the windows price.

Re:I wonder what happens with volume licenses?

[uigrad_2000]

The problem is with point #4. Ebay will not allow sales of software that violate the Terms of Use from the author. They are a private company, and have the right to do so.

But, if you live in the EU, you could sell the copy of Windows to your neighbor, or to some chick you met in a bar, and it would be totally legal. I know that's not quite as exciting, but ... uh... chick in a bar!