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German Court Forbids Resale of Valve Games
sfcrazy writes "A German court has dismissed a 'reselling' case in favor of Valve Software, the maker of Steam OS. German consumer group Verbraucherzentrale Bundesverband (vzbv) had filed a complaint against Valve as Valve's EULA (End User License Agreement) prohibits users from re-selling their games. What it means is that German users can't resell their Steam Games."
That's not the legal situation within the E.U.. The European High Court has actually ruled that it makes no difference if there is a physical medium or not, a sale is a sale, and the First Sale doctrin applies. Thus, lets wait for the appeal. (The article actually mentions the decision about downloaded software, if you are interested, it's UsedSoft vs. Oracle C-128/11.)
I think it's an in-between ruling. Why? Because I'm wishy-washy like that.
For a german, that is trivial to pronounce and no native german will have the slightest difficulty.
Welsh names, on the other hand... "Gwrhyr Gwastawd Icithoedd" - yeah, right. Did your cat jump on the keyboard? No, that's actually some real welsh name.
Then again, I assume native welsh speakers now think "uh, what's the deal? That's easy, it's pronounced ..."
Assorted stuff I do sometimes: Lemuria.org
Not rented - licensed.
Seven puppies were harmed during the making of this post.
[ Still using Slashdot until beta takes over, then I'll dump it. ]
It's an interesting ruling. While Steam's lack of support for re-sale of games may run into legal issues, their willingness to keep games available at lower and lower price points as games get older shows that they're not abusing the privilege. If you can wait a while, the price will come down to a reasonable point and the game is available for people who'd have otherwise needed to buy the game used. And I've been delighted to see old games that I've enjoyed, such as the original Doom or Thief or X-com games, be available on Steam. It's helped me avoid having to recover and old games and simply pray that they'd be playable on modern operating systems: I'm very pleased with Steam for making older games available at very reasonable prices. We're actually getting something from them in return for their exclusive licensing.
The correct headline would be:
German court refuses to force Valve Steam to allow resale of games
Too complicated?
This is a decision by a regional court. They universally suck at rulings regarding any technology invented after 1900. A state court recently held a domain registrar responsible for copyright infringement. And nevermind the treasure trove of truly grotesque copyright-related rulings coming out of the city-state of Hamburg - they are legendary here in Germany, similar to patent cases in Texas.
This is bound to be appealed, and our higher courts usually fare better when it comes to dealing with Das Internet.
Rudolf Hess edited Mein Kampf. He was the very first grammar nazi.
If it's a rental, Valve is in some hot water, when it comes to software. Because the owner of the rented item has to keep it in usable shape. Thus Valve would be liable for everything their software causes on their client's systems.
The first amendment refers to government censorship. Valve closing your account because you shared your password would not fall under its purview in the slightest.
Without commenting on the other aspects of that ruling, but that point is moot for games bought on Steam. The Steam EULA IS shown before the purchase.
And in another ruling just one day earlier German couts followed the ruling of the European court that in general, the sale of used software is legal and can't be stopped by EULA. (If it has been bought like a tangible good, the rules for re-sale of tangible goods apply. --> similar to first sale doctrine)
Licenseing is explicitly handled differently, but it has to be clearly noticeable that the underlying contract is a licensing contract and not a sales contract.
bickerdyke
The European High Court applied the Duck Test on this one, and it found thus: If it is a one term payment and if there is no time limit to the usability, it's a sale, independent on what the contract says, and the First Sale doctrin applies.
This follows a previous ruling:
The matter was litigated all the way to Germany’s highest civil court, the Federal Court of Justice (Bundesgerichtshof; "BGH"), which dismissed the suit in 2010, finding that while the doctrine of exhaustion limited the rights holders’ powers with regards to an individual DVD, it did not require them to design their business in a way that facilitated the sale of used games and therefore did not make the Steam terms of service unenforceable.
-- Osborne Clarke
This second suit was prompted by a court case which found that the first sale doctrine ("doctrine of exhaustion") did apply to digital goods. However, it's not surprising this case was dismissed because it is not a question of what rights the consumer has over software they have purchased, it is a matter of what duties the software provider must guarantee to continue providing.
IMHO it is perfectly reasonable that if it is a matter of online support (cost of server maintenance, etc.) that the one-time fee charged to one person does not in turn mean that person can give their support contract to someone else. The one time fee is presumably calculated based on typical use for a single account holder.
But the single-player package should remain fully transferrable.
And as for companies making games require internet connnections they really don't need to abuse the ambiguity here, let's just say I'm not going to cry when they complain about piracy.
When things get complex, multiply by the complex conjugate.
Valve has the right? Valve does not. Except now in Germany apparently they do. But in the US they are still skirting around the law and the first sale doctrine by using digital locks. Imagine if you had a physical board game that came with a license forbidding you from playing it outside your home, or from regifting it to someone else. But the fans will step forward and defend Steam over this, thinking it's just another form of copy protection.
That's not the situation here. The court ruling didn't say you can't sell the game. The court ruling said that Valve isn't required to let the person who bought the game use their servers.
Let's say you buy a ticket that gives you unlimited entrance to the zoo for one year. After three months visiting the zoo every weekend, you've had enough of seeing animals. There is nothing that stops you from selling the ticket. There is also nothing that can force the zoo to let anyone else but you into the zoo for free with that ticket.
I'm not German, learned it when I was in mid 20th and I have no problem whatsoever pronouncing (or reading) it.
There are words I struggle with (e.g. Eichhörnchen) but these are none of them.
Also take into account that being long doesn't necessarily mean being complex, long German words are often combined out of very frequently used words, which are easy to recognize.
What you've cited are actually 4 words. Verbraucher-zentralle Bundes-verband.
Exactly. I have no problem with rulings like this, as long as Valve can be sued for fraud if they use the words 'buy', 'own' or 'purchase' anywhere in their advertising. A quick glance that the Steam web site shows it listing 'Top Sellers' and says 'buy it once, play on Mac, PC or Linux'. If they are not allowing you to buy the game, then this is fraudulent advertising.
I am TheRaven on Soylent News
Except when a sale is a rental under a lease agreement, which is basically what the Steam EULA is.
In Germany, if you paid money for it - you bought it.
Unlike USA, in Germany, EULA can't override the (consumer protection) law.
My reading of the RTFA (the only linked by Muktware) is that the issue isn't as singular as "enforce the EULA":
1. (The first case.) Valve isn't obliged to facilitate the resale of games.
2. (This, the second, case) The judge decision isn't yet public so it is unknown why/how it was reasoned.
3. (Another pending case) Games are not only software, but in larger part are art work. And art work has its own protection laws.
All hope abandon ye who enter here.
I remember reading an analysis a while back that actually does a bit of economic/game theory on this, and he found that forbidding resale actually has positive benefits for the *consumer*. Part of his analysis was looking at prices between console games, resellable computer games, and games bought via services like Steam. More specifically, he looked at games with online-playing modes that require servers.
What he found is that with resellable games, gaming companies typically only got that 'first bite' and continued play was essentially free through quite a number of customers. Remember that places like gamestop will buy the old games for a song, and sell them for almost as much as a new game.
With games that can't be resold they're able to price the initial game lower, and keep the profit flowing in. It removes places like gamestop from the equation(so they hate it, of course). Consider that I can buy many year old initially $60 games from steam for like $10. Because the game is still being sold, there's still incentive to fix/patch/expand the game.
Roughly speaking, the results were that new game consumers don't pay any more(the new game is slightly cheaper, on average, by about the same amount as what they'd be able to sell it to gamestop for), used game consumers don't pay more, and the studios get more money vs resellers, increasing their profits and encouraging more/bigger games.
I don't read AC A human right
Do the Germans have a single, very long, really angry-sounding, word for 'this software is licensed, not sold'? Inquiring minds want to know.
it is impossible to resell, since I'm renting the game, but never "own" it.
Indeed. I think Steam should stop using the word Buy (which they currently do).
but if Steam goes down the path of DRM
Steam has been DRM since before Half-Life 2.
It refutes your point that "the EULA is shown *before* (emphasis mine) the purchase" as it changes afterwards...
In what way exactly? Steam always shows you the new EULA to accept if it's been modified.
Actually, if you can show that the rented object was defective when it was rented, the rental company indeed is liable to repair your VHS player (at least in the legislation I live in).
Actually it isn't "fraudelent advertising".
Not trying to troll or anything here, but you seem to share a common misunderstanding with the rest of the world. In the hopes of not getting modded down into oblivion, let me try to explain what is going on. And let me be clear that I don't necessarily support this model, I am just the one who risks his karma and dares explain it a bit better... :-)
You do actually buy something - but not "the game" as such. You buy a license. After you have purchased that license, it is yours. You can use it, or leave it idle somewhere, or burn it, or use it as toilet paper. The license does not give you copyright of the product; but you are free to use the license as you see fit, within the restrictions and rights granted to you in that license... and subject to local laws (which in some cases may expand your rights and in some cases limit it further).
This is in line with pretty much every other "license" in life; including licenses not related to software. A license is society's way of grating you certain rights in a limited fashion and it is used for a gazillion things other than software. You can be "licensed" to produce pharmaceuticals. Or fly an airplane in public airspace. Or recycle waste subject to strict environmental laws.Or carry a firearm. Or drive a car!
Since car analogies are the big thing in IT lets stick to that :-) You can "buy" a drivers license from a local driving school, but you are unable to "resell" that to another person, and you are bound by the terms of the license. You can't drive however you please either. You must follow certain ruled and protocols while driving (restricting the use of your car when operating it). If you loose its physical representation (the drivers license plastic/paper card itself) you are still considered to be "licensed" by the issuing state or country. You may get a small ticket for not being able to produce the little card, but that is not the same as "driving without having a drivers license". A drivers license is in many ways (but not all obviously) a good analogy for a software license. Both grant you certain rights but subject to a number of restrictions. Both are "personal" and cannot simply be passed on to other people. Neither of them are "physical"; they are both tied to your person in an immaterial fashion. Any physical object representing them merely serve as easy/convenient proof that you hold a license - the physical object is not the license.
While you have "purchased" your drivers license from the local driving school, that have not engaged in "fraudulent advertising" if they have used the words "buy" or "purchase" or "OMG get your licenze here for peanutz". But roughly the same condition apply to your drivers license as to a software license. There are many restrictions on how you can use the license, and if you give it to another person that does not in fact grant them "a license" to do anything. You are really just handing the proof that you hold a license - the license itself is not transferred. All the other licenses mentioned above follow this pattern as well.
In this sense Valve does not engage in "fraudulent advertising" because it is well understood that they sell licenses, not complete copyrights for software products. Or in other words: You buy a right to use the software in a limited way, you do not buy the complete copyright and full intellectual property. And giving your license to someone is really noting more than handing them proof that you are the rightful user of said license. The license itself is not transferred.
We may not like the way these things work, but that is an entirely different story.
- Jesper
My security clearance is so high I have to kill myself if I remember I have it...
"Steam has been DRM since before Half-Life 2." Anyone who thinks Steam isn't DRM is an idiot.
With that being said, Steam is the example of "good" DRM. As good as you can get atleast. Sure you can't resell your games, but you can download games you bought any time, on any number of computers without having to dance "Authorize/Deauthorize" dance. It also handles connecting to servers, game saves, friends lists, audio chatting...
Steam is pretty much the ONLY DRM service to get remotely close to right.
If you are militantly against DRM, then of course Steam can't do ANYTHING to win you over. For the other 99.9% of humans who understand compromise has to happen some time... Steam is a good product.
You are operating under the false assumption that buying software means either buying a license to the software or buying the right to make copies and derivatives of that software. There is actually a third choice: buying copies of the software. When you buy a disc for a game console you are free to play, lend, and resell it without permission (see the "first sale doctrine"). You are buying a copy, and the right to use that copy is implied; it requires no explicit license.
So... is buying a game on Steam like paying for a license, or is it more like buying a copy? Valve wants us to think it's a license, but it sure does feel a lot like purchasing a copy at the point of sale.
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
The court didn't "forbid" anything like reselling games. They simply agreed with the EULA stipulation that you're not allowed to transfer ownership of an *account*. This actually makes perfect sense.
The fact that Steam also disallows/lacks the functionality for the transfer (gifting or resale) of used games on Steam, simply means there's a market for other providers to start a platform that would allow sale and resale of games. Of course, they might have some trouble attracting large game publishers, but that's another matter altogether.
Very well stated, and may apply in Germany. But in the US, you need to look how our copyright is designed.
You buy a copy of the game, just as we have bought copies of books and music sheets. That didn't give us the right to make more copies, because that right to copy (with limitations) was reserved to the copyright holder. But it did give us various rights concerning the copy we bought.
In the US system, by default there is no copyright. Everybody can do whatevery they want with your creations. However, for the purpose of the advancement of arts and sciences, the Constitution allows the government to create a temporary, limited monopoly on the work. IOW, what copyright law grants you, you have. What copyright law doesn't explicitly grant you, you don't have.
Many times in the past, the attempt to over-reach the power of granted copyright has been dismissed. This is how we get the doctrine of First Sale. Once that copy is sold, the copyright holder has no further power over it. They are trying to get around this using the concept of licenses, but remember that copyright is the only thing that prevents us all from using their stuff legally without their permission. They need to work within the realm of copyright, and that means selling copies of their products and accepting the limitations copyright puts on their power. Otherwise, we should just take their stuff because they obviously disregard copyright too. Can't have your cake and eat it too.
Of course, it would be nice if the laws strictly enforced this, but then they are the ones buying the laws, not us.
...use is what would apply on a lease.