EU defends users' rights to resell digital content, but publishers can make that content unusable

The status quo continues

EU defends users' rights to resell digital content, but publishers can make that content unusable
It's always dangerous to assume a legal ruling in a specific case can be applied to a wide range of general cases.

This certainly appears to have be the situation in the reference ruling from the Court of Justice of the European Union in the case of UsedSoft versus Oracle.

Big guns

The specifics of this case came about because German company UsedSoft is reselling licences for Oracle's software, something the US company said was illegal.

Some particular aspects were that the agreement for Oracle's software allowed up to 25 users to access the server-based software, downloading the software and unlocking it via licences (effectively keys).

It was these that UsedSoft was reselling.

However, the court ruled that the first sale in the EU of a copy of a computer program means the copyright holder loses the right to oppose the resale of that copy.

This right to resale has always been the case with the physical distribution via CD or DVD, and this has now been extended to digital distribution.

Indeed, the ruling also points out that the copyright holder can't restrict access to updates of the software for users who have bought resold software.

This is the case even if the original maintenance agreement was for a limited period. The copyright holder has to allow the customer access to updates for an unlimited period.

On the other hand

Yet there are plenty of caveats. 

This ruling is only in the case of a client-server and licence key distribution and so doesn't apply to online services. Also, in the case of the 25 licences in the Oracle software example, a company can't buy a license for 30 users, use 25 themselves and resell the additional 5 licences. It's an all or nothing process.

Once software is resold, the seller must remove it from their computer.

And most importantly, the court says the copyright holder can use legitimate technical means, such as encryption, to prevent software being downloaded again.

"A copyright holder such as Oracle is entitled, in the event of the resale of a user licence entailing the resale of a copy of a computer program downloaded from his website, to ensure by all technical means at his disposal that the copy is made unusable," the ECJ said.

Finally, it should be pointed out that the actual case - currently running in German Federal Court of Justice - is yet to be heard.

All-in-all then, it seems that games publishers and platforms will be able to continue to restrict the reselling of digital content as they always have done, even though users in the EU now have a right - if not the means - to resell that content.

[source: Out-law / Court of Justice release (PDF)]
Contributing Editor

A Pocket Gamer co-founder, Jon is Contributing Editor at which means he acts like a slightly confused uncle who's forgotten where he's left his glasses. As well as letters and cameras, he likes imaginary numbers and legumes.


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