EU Courts Sides with Gamers, Can Resell Downloadable Games

The EU court has handed down an opinion that blows a giant hole in DRM and EULA's that are usually appended to downloadable titles. Namely, unlike the publishing companies contension that you are actually only buying a  license to play the game, the court has ruled that you have actually bought the product, and by being the new owner of that product retain distribution rights to resell it at your will.

The opinion reads:

An author of software cannot oppose the resale of his 'used' licences allowing the use of his programs downloaded from the internet.

The exclusive right of distribution of a copy of a computer program covered by such a licence is exhausted on its first sale.

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.

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.

The detail of the writing is very important. It states that the company cannot oppose the sale, but also does not include that the publisher needs to provide you with the ability to do it. Meaning, Valve cannot complain -at least in the EU- that you sold your digital copy of Portal 2 to someone else, but it doesn't have to do anything to make it easy for you.

Even in the EU, however, this ruling is not binding but is, instead, intended for reference in future court cases.  As an Opinion, it is only just that. However, it has a huge significance in how publishers may now honestly approach the subject of DRM and EULAs, and as JimSterling put it recently, "...just because a publisher puts some small print on a game manual, that doesn't give it new and superior rights. "

Well not in the EU at least.