EU's second hand software judgment rests on 'technical ability', says lawyer Jas Purewal

Decision 'poses more questions than it answers'

EU's second hand software judgment rests on 'technical ability', says lawyer Jas Purewal
The impact on the mobile industry posed by the Court of Justice of the European Union's judgment on the sale of second hand software may rest on technical ability.

That's the view of games lawyer Jas Purewal, who took to his legal blog Gamer/Law to explain that discerning a set line when it comes to the resale of digital content is no easy task.

The debate, he suggests, will revolve around whether an inability to resell digital content on a technical level serves as an adequate defence.

Two sides

"How does this case apply to mobile apps, where of course there is no software resale/trade ability? We don't know," says Purewal of the UsedSoft versus Oracle case.

"On the one hand, a straightforward analysis might be that mobile apps are software just like Oracle's program in the case and, therefore, that the first purchaser of a mobile app should be able to sell it to a second purchaser - even if technically the ability to do that doesn't exist…yet."

Purewal notes, however, that there's a case to suggest consumers shouldn't legally have the right to resell mobile apps if there is no technical ability to do so.

"In other words, if the software was never technically capable of being sold to a third party in the first place, does this case change anything really?" he adds.

"The retort to that might be, of course, that arguing about technical abilities isn't really the point: if the law says that mobile apps should be capable of being sold second hand, then the mobile platforms better do something about it."

A market on the move

Whichever way the judgment is read, however, the EU's decision has the potential to change the way mobile developers write and deliver their software.

"I think the case will have a sizeable short term impact, with a whole range of software businesses considering how it affects them," Purewal concludes.

"However, looking beyond that it seems clear already that the EU has posed more questions than it has answered and, in any event, nothing stays still in the world of tech and software."

[source: Gamer/Law]

With a fine eye for detail, Keith Andrew is fuelled by strong coffee, Kylie Minogue and the shapely curve of a san serif font.


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