[LEGALITY] EU Rules We Can Sell Downloaded Games

[Kirjava]

LADIES AND GENTLEMEN. Well, mostly gentlemen. The EU Court of Human Rights (which some of you may value and some of you may scorn) has just ruled that people should be allowed to resell games you have downloaded as a result of a case between software developers Oracle and German company UsedSoft, which was reselling licenses to Oracle products.

“The first sale in the EU of a copy of a computer program by the copyright holder or with his consent exhausts the right of distribution of that copy in the EU. A rightholder who has marketed a copy in the territory of a Member State of the EU thus loses the right to rely on his monopoly of exploitation in order to oppose the resale of that copy… The principle of exhaustion of the distribution right applies not only where the copyright holder markets copies of his software on a material medium (CD-ROM or DVD) but also where he distributes them by means of downloads from his website.”

Emphasis mine.

There's a more in-depth look at the matter on Rock, Paper, Shotgun, but for us: How do you think this will affect Steam, Origin and their ilk? Will it have an impact on the physical used game market as well as the online one?

[Wargrim]

Cool. Reselling is such a normal thing in non - digital products, now it could become / re - become the same with digital download games. That is, if someone actually sues steam and the likes to include a feature that actually allows for the necessary transactions.

[Misiok]

I don't know. Who wants to buy my games? My steam id is....

At any rate, this is a good change, shows those devs how little their 'EULA's' matter and how against it was against the consumer. Then again, I am seriously interested in what Valve will do, because Origin will be probably shitty for the consumer, as it is with EA's stance.

[sporty]

Unlike commercial software, games aren't worth enough to go to court over them, so EA, Valve Corp. and their ilk probably don't have much to fear.

Doesn't look like it requires those platform holders to provide a method of transferring single games, so I fear nothing really changes. Selling accounts was and is possible with or without that law.

[Langy]

Agreed, Sporty; nothing about that ruling says that copyright holders have to provide a method for selling downloaded software. Instead, it says that the copyright holders can't sue or otherwise attempt to punish people who have already sold that downloaded software using whatever means they could figure out.

[Misiok]

In before Sony and Microsoft won't sell their xboxes and playstations in Europe, and people start trading their steam accounts on ebay, legally.

[Paladin]

sporty: Two words - Class Action.

[roflmao]

This might increase the price of downloaded games. I'm all for reselling, but I'm also all for enjoying dirt cheap prices on Steam compared to those of retail. Mixed feelings here.

[kais58]

Does this have other much more far reaching consequences? ie can mmo accounts now be sold/traded without opposition from the game devs?

[Hirmetrium]

And how would they justify increasing the cost of games when console games are resold? there is no licensing fee for selling on PC. That accounts for the £15 difference. And why indies hate consoles.

[Mokino]

Say goodbye to Steam sales in the EU guys if Steam does add a method to allow used game sales. They'll want to prevent the mass buying of cheap games only to be resold for a profit later.

Like has been said, the digital distributors don't have to add any methods under this law. What likely will happen at most is the ability to transfer a license through customer support.

@Paladin, good luck going after someone like EA with a class action. They're just going to word their contracts very carefully so you don't have much chance of winning. They've got a much bigger and expensive legal team on their side.

[roflmao]

@Hirmetrium: Even though games on Steam, when they first come out, sell at the normal $50-$60 dollar rate, where things get cheap are the sales. Steam is constantly offering up to 75% off on XYZ and 50% off on this other thing. That might happen less frequently.

[Busby]

I don't think so. Valve has gone on the record that their sales, despite the low price, make them more money then just keeping the game at normal pricing. It is unlikely that they would change just because people are reselling games they bought for cheap. The only "if" is if the people who buy the the re-sold games would have bought the game at normal price. But even then, I don't think Valve would lose out that much at all because people buying copies that some one else bought for cheap rather then buying one for themselves for cheap.

[Octopus Rex]

good luck going after someone like EA with a class action. They're just going to word their contracts very carefully so you don't have much chance of winning.

Carefully worded contracts didn't help Oracle (the losers in this case).

[darkelf]

good luck going after someone like EA with a class action. They're just going to word their contracts very carefully so you don't have much chance of winning. They've got a much bigger and expensive legal team on their side.

Doesn't matter how carefully they word themselves, the contract does not supersede the law. If the law says you can resell, there's nothing EA can do to stop you, and if they try you have a case against them.

[Paladin]

Carefully worded contracts didn't help Oracle (the losers in this case).

More to the point, carefully worded contracts do not and can not invalidate a court's precedent. So if you have a ruling that games can be resold, then games can be resold. The point of a class action would be that it is not worth the trouble of filing a challenge suit for an individual, considering the small cost of games (Though I don't even want to think about the total expenditure my entire 300 game collection represents. Ouch), but a class action is entirely different. All you need is a law team that wants to prosecute the suit. They publish a request for people who own digital games to sign on to a potential suit. The individuals involved sign on because, why not? It doesn't cost them anything. The lawyers then figure out a total damage amount, something that roughly represents the financial loss that not being able to resell the games represents (You figure out about how much a used game goes for on average, multiply that by the average game count of the parties you're suing on behalf of, and then by the number of parties involved), a reasonable punitive award amount (Or an exaggerated one if you want to get them to settle for your actual target number), and file a suit. The monetary damages are simply to fund the lawyers' time pursuing it, and make them a bit of profit, as well as provide an incentive for the victims to actually sign on.

Then you go to court and push for a ruling on whether the previous ruling implies that publishers must make it possible for resale, as well as protecting the legality of such sales.

If so, the damages are awarded (Though probably less than the suit is asking for), the lawyers take 30-60%, and are happy with a stupid profit, the victims get a small pittance award each to make up for the years of having had their legal rights denied them, and the precedent is set, and all publishers have to ensure that resale of their products is possible, at least in the EU, though realistically many will simply make it possible everywhere because developing something specifically for one region is more hassle.

[Laevus]

Would this set a precedent against day one exclusive stuff? Say if you've preordered the game and gotten the slightly OP sword of +1 maiming as an exclusive preorder thing, would you now be legally allowed to resell your copy exclusive stuff included? Thus making day one purchase encouragement/schemes moot? (Assuming you find a channel through you can resell digital copies).

[Hirmetrium]

Steam is constantly offering up to 75% off on XYZ and 50% off on this other thing. That might happen less frequently.

That's a different point your making. The original point was "Games will be more expensive". Not "There will no longer be steam sales". I agree this will impact Steam says, but increasing the price will likely lead to a similar scenario as Australia where publishers are being investigated by the government for price inflation. It's very hard to justify that.

EA's customer support is already live chat and they will remove Games at your request and provide you with new CD keys. I don't see why Steam and the like can't manage that here. Who knows how many requests will be made too, or how long until a class action lawsuit?

It is amusing however, that the video game industry has only just started to fully exploit digital revenues and now its just been blown wide open. Wonder how long it takes until a similar case happens in the US?

[Mokino]

If such a case comes up in the U.S. it'll take a lot longer before it has any effect even if the plaintifs win. It'd have to start at the state level and work its way up to the supreme court for any actual law changes to occur.

[Weavern]

I think people need to back up the bandwagon bus on this one. No where does it say in the ruling that you can sell your account and get away scott free. It simply says that it is not illegal to resell a game you digitally downloaded to another party provided that you remove all traces of it from your ownership.

Nothing in this ruling (correct me if i am wrong) says that they cant take other actions short of a lawsuit on you as part of using their service (which may start up a whole new lawsuit). Frankly i am shocked that this went down and given how much more powerful the vested interests are in the US legal system, fat chance of this making it across the pond.

As noted in the tail end of the RPS article

Their current infrastructures certainly don’t support reselling, and they’d probably ban your account if they caught you trying to. This is a ruling whose implications could stretch a very long way. There are bound to be challenges to the ruling made, and we can assume this one will stay in courts for a good while longer.

I look forward to the first person who tries to sell their account and then discovers that they have no account to sell.

[LoneWolf666]

This I feel may have rather strong implications for the business models. It may well cause publishers to shift from releasing games in the traditional "$x for a full game" model to various sorts of account-based stuff, be it subscription or microtransactions, maybe even linking an account to multiple games from the same publisher (You want to sell your account for game X? Well, have fun losing your stuff for games Y and Z that you have on that same account!).

[Paladin]

If such a case comes up in the U.S. it'll take a lot longer before it has any effect even if the plaintifs win. It'd have to start at the state level and work its way up to the supreme court for any actual law changes to occur.

False. One does not have to start a lawsuit in a state court. You may file your initial suit in the federal courts under certain circumstances. One of which is if you're filing a suit against a business or individual who is based in a state other than the one in which you live, so basically most of the people who've bought any given game may file their suits in federal court just by that one.

Furthermore, all court decisions set precedent which is binding to various degrees, regardless of the level or circuit involved. If you file a suit in a state court, the decision is binding for that state. If it is not appealed, the precedent stands. If the appeals courts refuse to hear it, the precedent stands. If the supreme court declines to hear it, the precedent stands. Any decision made by a federal court is binding to that circuit (Which is generally a collection of a few states), and while not binding for other circuits, is looked at as a strong suggestion for all others as well. Unless a decision is overturned by a higher level court, it remains in effect and binding for its specific jurisdiction.

[Civik]

These kinds of decisions may be why companies are probably pushing the use of the 'cloud' for everything. If it is run on their servers, you never have the product installed on your machine and they can treat it as a service instead of a product. After all, if it isn't installed on your machine, you never owned it.

[Paladin]

The EU decision would apply to selling your account though. Quite directly.

Any company that banned an account because it had been transferred to another person would be clearly and explicitly in violation of the existing ruling.

[Yankov]

lost me totally.. since there's no way to shift a title from 1 account to another. you can't trade.

[Paladin]

You can still sell the account itself.

If you want to sell, say, Steam games for instance... You simply make a new Steam account every time you buy a new game. Any time you want to sell off an old game, you sell the account associated with it to someone else.

[Mokino]

Except that such a thing is against the Steam terms of service, iirc, and there's nothing in the laws allowing you to circumvent that part

[Paladin]

Yes, there is. Their TOS is illegal in the EU. The ruling invalidates that element of their TOS and makes it illegal for them to try and enforce it in the EU.

The suit was, in the first place, brought because the resale of the software in question was against Oracle's licensing agreement. The court found that Oracle's licensing agreement was not legal, and therefore could not be enforced. That decision directly applies to other software licensing, including Steam's.

Decision also makes it illegal for a company running an MMO to forbid the resale of accounts (And the characters contained therein), though obviously the purchaser would still be required to pay the upkeep on the subscription. But yeah, it makes it legal to sell your WoW account in the EU.

Law, both statute and judicial decisions, supersede contract law. Pretty much everywhere, afaik.

[Kirjava]

I didn't want to make a whole new thread for it, but while we're talking about them and digital matters, the EU Parliament also rejected ACTA today...

[Gorb]

I'm not great with legal stuff, Paladin, but I don't think just because you have a precedent case/a prior ruling (or whatever it's called), doesn't mean that any similar cases are automatically invalidated. I'd imagine a Steam account sale issue reaching the courts may have potential to turn out differently.

Or Steam could just ban/delete the 'sold' account. They are allowed to revoke access to their service at any time, as I recall.

[Langy]

No, Gorb, that's exactly what precedent means. Sure, Valve could sue you or whatever, but when it gets to the court, if it interacts with the precedent, the court either needs to obey the precedent or it needs to overturn it - and overturning precedent takes going up to a higher court.

So, basically, precedent makes it so that that lawsuit by Valve would get thrown out of court (or you'd be able to win a nice big settlement from Valve if you're the one suing). The only real question is whether the new case is similar enough to the precedent-making case.

[Gorb]

Well I suppose that's what I was getting at; the similarity between the cases (or more the lack thereof). Thanks for clearing up my confusing r.e. precedents though!

[Paladin]

I think you should read the ruling. It's quite clear.

[Gorb]

The ruling quoted in the OP? Sure.

Doesn't really cover Steam accounts though. Games, sure. Accounts? They're not a "computer program" and as such don't seem to be covered.

[Paladin]

Actually, it specifically talks about licenses. Which are what you purchase from Steam.

[Gorb]

“The first sale in the EU of a copy of a computer program by the copyright holder or with his consent exhausts the right of distribution of that copy in the EU. A rightholder who has marketed a copy in the territory of a Member State of the EU thus loses the right to rely on his monopoly of exploitation in order to oppose the resale of that copy… The principle of exhaustion of the distribution right applies not only where the copyright holder markets copies of his software on a material medium (CD-ROM or DVD) but also where he distributes them by means of downloads from his website.”

Not seeing the word "license" there anywhere Paladin.

Furthermore, yes, you purchase some form of license in order to use the content of a specific game. The license doesn't, I think, cover your Steam account; unless you can show otherwise. I'm trying to load the full PDF but this Internet is taking its sweet time.

EDIT: ah, it loaded. Seems to be going on specifically about the case between Oracle and UsedSoft, naturally. Which means subsequent cases will be able to challenge the precedent and/or establish that their case is so different that the precedent may not apply. No? Leaving aside having to take it to a higher court, that is possible, right?

It does make me wonder how you are so certain that a second case would turn out similarly; I certainly have no idea having no legal experience. Do you have insight/learning on the subject of law that you could use to educate a buffoon such as myself

EDITEDIT: aha, scrolled down. This bit is interesting, and perhaps something digital distributors would challenge.

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.

As far as I know, Valve's right to terminate your Steam account at any time for any reason would invalidate being able to use the software for an unlimited period of time. Or certainly, you could argue it that way, which is what lawyers do, right?

Failing that, you may see digital distributors changing their terms of service to account for this.

[Misiok]

@Gorb - I believe Steam changed their policy. You can get banned from Steam, but you will still be able to play your Steam games, sadly I don't remember the source but it was sometime after Christmas sale thingy.

[Yankov]

Yes, there is. Their TOS is illegal in the EU. The ruling invalidates that element of their TOS and makes it illegal for them to try and enforce it in the EU.

The suit was, in the first place, brought because the resale of the software in question was against Oracle's licensing agreement. The court found that Oracle's licensing agreement was not legal, and therefore could not be enforced. That decision directly applies to other software licensing, including Steam's.

Decision also makes it illegal for a company running an MMO to forbid the resale of accounts (And the characters contained therein), though obviously the purchaser would still be required to pay the upkeep on the subscription. But yeah, it makes it legal to sell your WoW account in the EU.

Law, both statute and judicial decisions, supersede contract law. Pretty much everywhere, afaik.

i don't think an account is the same thing as software or licence. you can resell licence all you want, but the account is tied to a person.

heck... it's not unimaginable for publishers to enforce the 1 person 1 account route by having you verify your account by passport/id number type of stuff... complete nightmare to implement, nevermind use.

[Mokino]

Yankov is right. There's nothing in this ruling that sets a precedent for MMO account selling. Accounts != software

You could sell your client disc, basically, but the server side data is the property of the parent company. It's a service, not a product. Just like cable TV.