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Valve Prevails in German Lawsuit

The 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 MCV). 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 that ruling:

The judges’ 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.

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