The Court of Justice of the European Union has decided that license agreement governing the use of a digitally distributed product can be resold between customers, as long as the seller makes his own copy of the program unusable.The decision is important for all software products that are distributed without the support of a physical package, but it could be crucial for services like Steam, Origin, Xbox Live Arcade or PlayStation Network.
Companies like Valve, Electronic Arts, Microsoft and Sony currently prohibit the buyer from re-selling their games through the license agreement, which the decision clearly mentions is not impossible to enforce.
The decision was linked to the case of Oracle versus UsedSoft.
The decision of the European Union Court of Justice states, “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,”
It adds, “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 right to resell is not linked to the companies’ ability to protect its own intellectual property rights.
It’s not clear whether digital distribution services will now implement a secondary market in their client or whether they will try and create a common initiative to allow for re-sale.
The companies might also try and delay the implementation of the European Court of Justice ruling and it could take legal action from a group of gamers in order to force a chance in procedures from the companies.