Osborne Clarke website
has the outcome of the
German legal case
against Valve over
the non-transferrability of Steam
accounts and the inability to sell pre-owned
Steam games (thanks
). German consumer group vzbv previously unsuccessfully sued Valve over
this, but a 2012 ruling by the European Union that the doctrine of exhaustion
applied to digitally distributed computer software inspired them to take another
go at this. The legal eagles at the site explain why Valve prevailed in spite of
The judgesí comments at the oral hearing held a few days
before the verdict transpired do indicate that they do not consider the doctrine
of exhaustion to be applicable to digitally distributed computer games at all.
However, this is not a direct contradiction of the UsedSoft decision.
In fact, in UsedSoft, the CJEU mentions a possible discrepancy between the
provisions on exhaustion in the general copyright directive and the computer
software directive that may very well mean that exhaustion for intangible copies
cannot apply to anything but computer software. And in a very recent case
involving pirated copies of video games, the CJEU, holding that such games,
because of their audiovisual components, were "not only computer software",
considered them protected under the "general" copyright directive 2001/29/EC.
A second case dealing with the precise copyright status of video games (coming,
incidentally, from Germany) is currently still before the European judges, so
the case law on this issue must be considered in flux. But at least for the
moment, it looks like digitally distributed video games are not subject to
exhaustion in Europe.