European Court Says You Should Be Able To Re-Sell Your Digital Games

If you pay to download a video game, does it then become a product you own? And should you then be allowed to sell or give it away like you can with physical products?

The European Union's Court of Justice has its own opinions on this long-running debate, noting as part of a filing today that customers should indeed own the rights to digital software.

"Moreover, as stated in paragraph 46 above, in a situation such as that at issue in the main proceedings, the copyright holder transfers the right of ownership of the copy of the computer program to his customer," the court said.

The court also ruled that customers should be able to re-sell their digital software:

Since the copyright holder cannot object to the resale of a copy of a computer program for which that rightholder's distribution right is exhausted under Article 4(2) of Directive 2009/24, it must be concluded that a second acquirer of that copy and any subsequent acquirer are ‘lawful acquirers' of it within the meaning of Article 5(1) of Directive 2009/24.

Consequently, in the event of a resale of the copy of the computer program by the first acquirer, the new acquirer will be able, in accordance with Article 5(1) of Directive 2009/24, to download onto his computer the copy sold to him by the first acquirer. Such a download must be regarded as a reproduction of a computer program that is necessary to enable the new acquirer to use the program in accordance with its intended purpose.

So what does this mean for gamers? Well, nothing — for now. But a ruling like this could set a precedent for future digital-rights cases in Europe, particularly surrounding distribution services like Steam and Origin. Do you have the rights to the games you buy and download? Should you be allowed to resell them? Be prepared for many, many legal battles and quagmires both in Europe and the US over the coming years as the industry attempts to answer those questions.

JUDGMENT OF THE COURT (Grand Chamber) [InfoCuria — thanks Robert!]

Photo: ene/Shutterstock


    This is a terrible decision, and is going to make things worse for developers, publishers, and ultimately consumers.

      Yup, and here comes another exciting round of "How Many Times Will 'Self-Entitled' Be Written In The Next 2 Days?"

      Actually this is a good decision. Not so much with the idea of selling second hand digital copies, but rather entrenching the idea that you actually own the software once it's sold to you. This is one of the biggest BS attributes of late with games (and software in general), the idea that you don't own the product, but just have a license for it.

        In what way is it bullshit?

          They can legally revoke access for a start.

            Yep, this is my only real concern... Publishers "turning off" the game, specifically the single player component, because let's face it, if I have a device the product was originally designed for, that is capable of running the product I paid for, then I should be able to still play the the game.

              So you've never scratched a CD, then?

                Actually I've been pretty good with not getting scratches on CD/DVD whatever, but not sure how that relates to what I said.

                I honestly don't care about the reselling component of this decision. My issue remains with the ownership of the product. Purchase anything digital and the publisher can choose to pull the pin on your access to the product at any time and then you are sweet out of luck. As Cameron mentions above this gives the consumer more 'ownership' of what is purchased and hypothetically gives the consumer a leg to stand on if a publisher 'decommissions' a game.

                If I buy something digitally, the product has been designed for a certain operating system and/or console. With your example below, I'm not expecting these products I purchased now to be playable on successor products 10 years from now, but yes, certainly it would be a bonus if they could.

                Take Assassin's Creed Brotherhood, this has the Ubisoft always on DRM, if I have working PC whose specs that are inline with what the game was developed for, if I purchased it digitally I don't see why I shouldn't be able to play it at any point in the future if I have the hardware to support it, but that's not the case as Ubisoft could choose to kill it whenever they choose.

                  Yes, I guess I was a little short. Your argument , as I understand it, is that having a physical manifestation of the product (CD, DVD) ensures you a degree of permanence, given that, as you stated, you maintain the system that it was designed for.

                  My point is that even having the CD or DVD does NOT mean you'll be able to play it permanently, as one drawback of a physical good is that they can be damaged. This is not always your (as the consumer) fault. The CD can get scratched, may be damaged in a fire, even as simple as getting warped from being in a hot room. The latter 2 of that group can certainly happen with no fault attributable to the consumer.

                  As for the publisher 'shutting a game down', while admittedly I don't own many UbiSoft games, the only cases that I have ever experienced where I have unwillfully been stripped of the right to play have been MMO's, where there is no physical distribution available. Even in cases where publishers HAVE shut down support, or attempted to, there have been workarounds. One of the old BF or CoD games switched to private servers, the publishers of Demon Souls caved to consumer pressure and renegged on shutting it down, etc.

                Terrible comparison. If you scratch a CD, you could still either buy a new copy or use a backup copy and continue playing. If they "turn off" the game, then you have lost the ability to play that game regardless of how many copies you have.

                yes that your falt though here the publisher can come to your house and shatter the cd into a million peices

              You are right. In that sense, consumers should have a level of protection such that provided reasonable use (i.e. you don't break the terms of service), your license cannot be revoked.

              However, I'd suggest that consumers having the ability to privately trade licenses is a distinctly separate matter to whether software should be distributed via a licensing mechanism.

                Well they go hand in hand. If you own something, a 3rd party can't dictate terms on which you use that (in most cases, there are cases where laws apply of course, you can't freely buy and sell guns for example).

                  What third party? We're talking about a license between The Publisher (party the first) and The Purchaser (party the second).

        If you think 'owning' the CD (it's just a medium of distributing the license) means you'll be able to play it forever, you're mistaken. Have you tried to fire up Warcraft 2 recently? Doesn't work. Hell, if you have a new-ish computer, have you tried to fire up Fallout 3 recently? Doesn't work (without tweaking the .ini). Jordaan's movie ticket analogy below is probably the best i've seen. With no degradation of quality in digital goods, there's no incentive for a consumer to NOT buy second hand. You cannot re-sell your movie ticket after watching the movie.

        If this comes in to play, millions of people could play the next Final Fantasy game (for example), but SquareEnix only sell 100,000 copies (people re-selling it on 10~ times after finishing it is NOT a ridiculous estimate).

    This is a terrible decision, and is going to make things worse for developers, publishers, and ultimately consumers.

    Something like this could do some serious damage to Steam :/

    Actually... not too sure this is a good idea lol.

    As much as I hate to say it I don't want re-selling of digital products to become a reality. Services like steam are slowly pushing down the price of games mainly because developers/publishers are guaranteed more money overall. It would also require additional infrastructure and system/billing changes to allow users to 'on sell' their digital repository. And who will foot the bill for that - us.

    Having said all that I think physical copies should be re-saleable and that includes the code(s) for usage of that game. Paying for multiplayer - while understandable in the current climate - really is a dodgy move; especially for Peer to Peer controlled games.

    I don't know about resale of a digital product, perhaps the resale should be through official channels so the license transfer is official and the producer/ developer gets a cut.
    However, there should be a way to transfer ownership of licenses. It's the same with music. If you die for example, music licenses are not transferable, so you can't (in your will) give your whole itunes collection to your next of kin.
    I don't know how it works with steam but I assume it's the same, you can't transfer ownership of your account, therefore if you die, your whole games collection dies with you.
    Something to think about

    Well I am all for it, I can buy and sell a car so why not a game I paid for in store?

    The way it should work is if I want to sell a steam game I can, but a % of the sale should be kept and distributed to the developer/steam whoever.

    You can be a dick about the whole self righteous thing but at the end of the day, I paid for a product so it should belong to me. What makes this form of entertainment so self righteous that it can create its own set of rules. I can buy and sell movies, cds etc.

      1. You did not pay for the product. You don't own the software. Where you were aware of it or not, you paid for a license to use the software. In most industries, vendors and not forced to make licenses transferable.
      2. When you buy a used car, you are making a compromise. It is of lesser quality than a first hand, and has no vendor quality assurance. No such compromise exists for software, and thus no incentive to not buy second hand.

      When you buy a ticket at the cinema, are you upset that you cannot then sell said ticket to another person so that they may view a later screening? Not everything you pay money for is without limitations.

        I like this analogy 2. If you buy a used car, the warranty may not be transferable or have run out ofter the 3/5 years. It could be the same with software/games. If you but from the vendor, you get support and updates are free. If you bought second hand, you don't get those, or you have to pay for them.
        My main problem is if the developer shuts down and you now no longer have access to the games you originally paid for. I spent 2 months trying to get my legitimate TDU2 to install because I had to rebuild my computer so many times that the activations ran out.

        I don't really see the point with your movie ticket anology. Of course you can't sell a movie ticket after the movie is over, because the ticket is worthless to anyone including yourself because the movie showing is over. Can you sell a ticket before the movie starts? Yes, because it still means you can go see that movie.

        The fact you fork over cash for a "license" instead of ownership is stupid. When you buy a physical copy of a game it's yours. They can't come to your house and take it. Provided it's not an mmo or 100% online game you will be able to get the game running even 10 years later if you wanted (I can still get warcraft and fallout working from my cd's, even if it does require a couple tweaks it still works). I'm not really fond of the reselling part of this, but the ownership of digital products should be normal.

        In your post it sounds like you would be one of those people rallying against this arguing the "realities" of software ownership rather than actually changing the way it is.

    It might actually be a good thing, while used game sales carve out of a developers primary sales we're now in an age where holding onto your game could be better due to up coming DLC. Ultimately it will mean developers will need to focus more on quality and less on quantity on an individual title, and make sure that any title they produce can be backed up with multiple extensions and updates. It also gives modders more importance in the developers world as they further add value to a product.

      The problem with that is that it forces games to be designed to be modular. Some ideas just don't work modularly.

        The other problem is that if the game is digital you can easily sell me your copy second hand and then repurchase it later from someone else when the DLC comes down. It means that several people could play a single player game for only one payment (even given the scenarios DopeFish is suggesting).

        This analogy is wrong!

        When you buy a car, the moment you sign the contract it becomes second hand. You can sell it as as second hand then and there, and it is of lesser value because it has already been "owned", yet it has not been used and only has been owned for ten minutes.

        So, hah. And buying second hand is not a compromise all the time in other situations as well. People buy products they regret buying, do not open the box and proceed to sell them. They sell the at a lower price, the compromise is at the hands of the vendor.

        Also, I own my goddamn games.

          I have no issue with someone buying a game, regretting it, and returning it without having played it for a full refund.

          But that is not what is being discussed here. We are discussing the situation wherein Person A purchases, uses and potentially 100% completes a game, and then when they're done, sells it to Person B, who for all intents and purposes, has a brand new copy of the game to play, and then potentially pass on to Person C to repeat the cycle.
          3+ people have thus played the game in its best possible quality, enjoyed the product, and potentially used resources at the developer's expense, and the developer has been compensated once.

          In all of the situations you've described, the original purchaser is worse off for having sold the product, in new or near-new quality, to a second consumer. Thus, the system discourages such practice innately, and you'll notice that these situations rarely arise. How often do you think someone purchases a car, then sells it as second hand the next day, without having driven it?

          On the other hand, after completing a game 100%, I am in no significant way disadvantaged when I sell it to someone else and get 1/2 of my money back.

          Finally, no you don't own the game, the company or individual that published it does. You own the right to play the game, and said right may or may not be transferable.

            "the developer has been compensated once."

            Big whoop, deal with it. This is exactly how it works with every other legitimate second-hand transaction. Do you forget the access of ownership? If this is a legitimate second sale (not piracy) then each subsequent seller LOSES access to their product, it's a common concept for second hand. Forget how many people get to 'experience' the game, how many legally paid for, legally owned copies/licenses/whatever is the same.

            "Thus, the system discourages such practice innately, and you’ll notice that these situations rarely arise."

            As I mentioned above, the second-hand system is not just about the degradation of product, the cost, rarity, and the transfer of ownership. The topsy-turvy nature of second-hand pricing is defined by a mix of all these things, and I kid you not, so is the pricing of brand-new retail.

            "On the other hand, after completing a game 100%, I am in no significant way disadvantaged when I sell it to someone else and get 1/2 of my money back."

            Apart from not having and being able to play that game you had? Whether you want to or not is pointless as it's at the whimsy of each player. I noticed above that you made an analogy of games with movie tickets. That would probably work if for every game we had to leave home to another facility where we could only play the game for a set amount of time and then when it's over we have to bugger off with nothing else to show for it.

            "Finally, no you don’t own the game, the company or individual that published it does. You own the right to play the game, and said right may or may not be transferable."

            And thus the argument exists. Whether it's true, legal, or simply the facts that you need to remind us of every time: clearly a lot of people don't like it. That's why it's being discussed here, and in the courts. Believe it or not but a lot of people don't want to look at the product they just bought in their hands (or in this case on their HDD) and go "hey that's not mine, I don't own it. I'm not even allowed to lend it to a friend. I'm practically renting it."

              "Big Whoop, deal with it". The model that you're suggesting is not sustainable. If this goes ahead, the only games that will be profitable are Seasonally Themed Skinner Boxes. You can say goodbye to art and innovation.

              The relationship should be simple.
              As a developer, you have the right to get paid for creating a game. The more people enjoy your game, the more you should get paid.
              As a consumer, you have the right to play the game you paid for. Not the right to own it, or resell it, but to play it.

              That is the extent of it. You start cutting into that by saying consumers have a choice of giving developers $X, or giving some other dude $0.5X for an identical consumer experience, and you can kiss this medium's positive development goodbye.

              Even if you think that not being able to resell games is a hit to consumer rights (which I don't), surely that's a better thing to remove, rather than the soul of the industry?

                "You can say goodbye to art and innovation."
                Oh no, could you exaggerate harder? I mean video games are dying right? Just like books, movies, music, and a whole lot of other mediums eh?

                "The relationship should be simple."
                But it isn't, it's just not as black and white as that. As a developer you have a right to be paid for the work transpired, and that's independent of whether the game sells. If I was an investor who had enough money I could pay some developers to make a game and then give it out for free. Of course that's not likely to happen but I'm just trying to show that in the real world, of real ordinary people who only think as far as their own wallet, the developer has the right to be paid by their employer. The player has the right to hand over money for an object they can play, a thing that as far as they're concerned may as well has been made by rocks. You may not enjoy the human disconnect, but that's simply how we work with "things."

                Consumers have a choice about BUYING something for $X. They're not giving anything to developers, it finds its way there but really people just want A, pay $X, get A. Then he sells his A for $0.5X, other guy pays $0.5X, gets A, original loses A. Developers of A should probably be more concerned that people want B for the same $X, but can only have one. Guess what developer of A gets when people buy B? NOTHING.

                The money in people's pockets doesn't already belong to the developers, and never did. Most consumers don't care who made it, if they want it they buy it. There has been a shift in that regard with a lot more attention given to Indies where knowledge of their style informs new consumers and said consumers get a kick out of supporting them, but they're mostly good games. I fear even more for a future where people just buy shit just to support developers because the fact that you do becomes more important than playing a fun game.

                "surely that’s a better thing to remove, rather than the soul of the industry?"
                Now that's just insulting. Did the industry have no soul in the 90s? in the 00s? Time periods where my entire collection of Mega-Drive, N64 (holy hell Dreamcast) and a great deal of PS2 games were almost entirely second-hand, I remember the very same industry puttering along with a huge soul.

                Short answer: NO I don't believe that it will ever be a better thing to remove a person's right for the benefit of business' ability to make more money.

                  Just to elaborate: This issue is clearly much bigger than we can argue about. Neither of us will be right or wrong on this. The new digital distribution systems have created a new market that will have serious trouble integrating into ordinary rights and systems of commerce. Personally I'd have been happy for it to have just stayed boxed retail, then this argument wouldn't even exist.

    So if publishers cant afford to make retail games due to piracy and second hand games in the future and they turn to digital to be faced with this... The future of games will only be freetoplay crap and there wont be as many AAA titles. I mean, even Call of Duty is getting a freetoplay game. (And yeah, being CoD its all the maps and guns from modern warfare 1-3 rolled into one so they are literally re-selling them again...)

    Would it not be possible for publishers to allow for digital re-sale through some form of online store, where they recieve a percentage of the sale? Similar to selling items on ebay, surely thats more reasonable than stores selling pre-owned hard copies, at least the developers recieve a small financial cut.

      Option A: Pay $X for a game from Developer Y, profits going to Developer Y
      Option B: Pay $2X for a game from Developer Y, profits going to Developer Y

      How many people are going to pick option B? Given the choice of two products that are identical, who would choose the more expensive option?

        There are quite a few people who would buy option B, because they want it brand new rather than second hand (me being one of them). The idea isn't bulletproof as you pointed out, but I think it's a better alternative to whats happening. And it also beats that online pass shit they are pushing out.

        It would be extremely hard to implement though... people will still sell traditional second hand. If the developers get even 1/3 extra profit from this way I think it would be useful.

    This argument about the degradation of second hand goods is pointless. It's one of the perks of digital media that production costs are nil. Publishing companies pushed for that. They can't create instantly transferable, non-degradable products and then rescind the usefulness of that product. It's not the consumer's fault that the businesses have driven their profit margins down.

      The cost of production was always close to nil. Discs and cardboard are cheap. The cost is, as it always has been, in development, and that cost is only increasing.

    Anyone else see digital resale as a absolutely horrible thing that could potentially destroy the Indie scene? Cause I do..

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