The EU Digital License Ruling Doesn’t Change Much

Okay, so first things first…yeah, this post is way too late. My apologies for that. While I’m sure you’re incredibly interested in hearing the reason why I wasn’t able to get this article up and running on time, we’ve something to discuss today. Something fairly important, as a matter of fact. See, earlier this month, a judge in the European Union made a very, very interesting ruling- one can only describe it as fairly progressive.

If you’re in one of the EU’s member states, and you’ve purchased digital content online (such as through Steam or Origin), you are legally allowed to resell it: regardless of what the organization you purchased it from tries to tell you. Pretty good, right?  But what does it mean for the industry?  This could be the basis of a revolutionary new set of laws, right?

Right?

Specifically, the ruling states that “an author of software cannot oppose the resale of his ‘used’ licenses allowing the use of his programs downloaded from the internet. The first sale in the EU of a copy of a computer program by the copyrightholder or with his consent exhausts the right of distribution of that copy in the EU.” 

Okay, so to be fair, it still limits the resale of content to a degree – once you’ve resold a used content license to someone, they’re not going to be able to sell it to someone else. Even so, in a world where the right of ownership of digital content is still suspect, it’s an incredible step forward, and once again affirms my belief that, in stark contrast to the United States, there’s some pretty level-headed judges and lawmakers in the Union (you’ll recall that they almost unanimously rejected ACTA when it came time to vote on that underhanded piece of laundered legislation). Contrast that to the United states, where we’ve still got puppets like Lamar Smith and his cronies trying to force through broken legislation and wasting billions of dollars that’d be much, much better spent elsewhere.

We’re getting a bit off track, it seems. Sorry about that.

Okay, so there’s no denying this is going to have some pretty hefty ramifications across the board, right? Until now, no one’s really addressed the question of digital content resale- it was one of those elephants in the room that everyone was aware of, but none of the lawmakers deigned to touch. And why would they? Reselling was generally covered in the EULA or TOS, and could effectively be summed up by one word: Don’t.

So, once again: how exactly is this going to affect video games?

Well, unless you live in the European Union…it probably won’t. While there’s certainly a chance someone such as Valve will implement some sort of resale system in Steam (I wouldn’t put it past them to do so, as they tend to be somewhat ahead of the curve themselves), it’s not incredibly likely unless similar legislation passes in the United States and Canada. Given our track record, there’s a pretty good chance that’s not going to happen. The opposite of progress, indeed.

A Series of Caveats

“You can resell content, except when you can’t.”

There are a few troublesome concessions in the ruling that bear mentioning here before we consider what impact it might have. See, first and foremost, it doesn’t apply to online services (which, if you think about it, is pretty fair. You can’t really re-sell your membership in an organization to someone else, so why would you be able to legally resell your MMO account?). Second – and this is the most troublesome caveat, which effectively neuters the ruling as it stands now – the copyright holder has the right to prevent that resale.

“A copyright holder such as Oracle is entitled, in the event of the resale of a user license 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.”  So…let’s see if we’ve got this right. Even though people in the EU now have the legal right to resell their content…they still don’t technically own it, and the copyright holder can simply tell them, “no.”

Basically, upon closer inspection, the ruling comes down to “you can resell content, but you can’t.”

 

A Step Forward?

Even in light of the fact that the ruling still gives undue rights to the copyright holder, I’d argue that it’s a step forward, just the same. The court has, at the very least, acknowledged that the end user has a right to ownership of the content that they’ve purchased- even if that right is trumped by the rights of the content’s creator.

We’ve still got a long way to go before we’ve reached a point where the legalese surrounding digital content is fair for its users in any sense of the word…but at least with this case, we could consider ourselves to be moving in the proper direction. Well…sort of.

We’re going to need to take a step back and see if this sort of ruling becomes a trend before we make any assumptions, either way.