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EU to Allow Digital Software Resales?

[Jul 03, 2012, 11:13 am ET] - Share - Viewing Comments

This document (Adobe Acrobat format) outlines a legal ruing in the EU that seems to open the door for resale of digitally distributed software (thanks Joao). Here's a bit:

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 agreement prohibits a further transfer, the rightholder can no longer oppose the resale of that copy.

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15.

Re: EU to Allow Digital Software Resales?

Jul 3, 2012, 13:54

nin wrote on Jul 3, 2012, 11:18: I'll be curious if this is enforced, or something digital services can simply get around by adding something to their EULA, along the lines of "if you use this service, you agree not to resell your games". No, for starters the ruling means there'd be no "damages" for the publisher to sue for. For seconds, in the EU, standard form contracts with consumers are considered non-negotiated (i.e. there's almost an assumption that it wasn't even read) and basically anything that is not reasonably expected is usually void. They comment as such in the quote - therefore, even if the licence agreement prohibits a further transfer, the rightholder can no longer oppose the resale of that copy. However, bear in mind there can be a service element to a digitally acquired game. That's a different relationship and non-transferability is likely a lot more defensible.

Subject

Comment [quote="DG"Jul 3, 2012, 13:54][quote="nin"Jul 3, 2012, 11:18]I'll be curious if this is enforced, or something digital services can simply get around by adding something to their EULA, along the lines of "if you use this service, you agree not to resell your games". [/quote] No, for starters the ruling means there'd be no "damages" for the publisher to sue for. For seconds, in the EU, standard form contracts with consumers are considered non-negotiated (i.e. there's almost an assumption that it wasn't even read) and basically anything that is not reasonably expected is usually void. They comment as such in the quote - q[therefore, even if the licence agreement prohibits a further transfer, the rightholder can no longer oppose the resale of that copy.]q However, bear in mind there can be a service element to a digitally acquired game. That's a different relationship and non-transferability is likely a lot more defensible. [/quote]

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