EU Court Ruling: Reselling Digital Games Now a Must

The European Union's Court of Justice has ruled that consumers within the EU can legally resell downloaded games and software, despite any restrictions in End User License Agreements (EULAs). This landmark decision stems from a legal dispute between UsedSoft and Oracle, clarifying the principle of copyright exhaustion.

Copyright Exhaustion and Resale Rights:

The court's ruling centers on the principle of exhaustion of distribution rights. Once a copyright holder sells a copy of software and grants the user unlimited access, the distribution right is considered exhausted, enabling resale. This applies to games purchased on platforms like Steam, GoG, and Epic Games. The original purchaser can sell the license, allowing a new buyer to download the game. The ruling explicitly states that even if the EULA prohibits further transfer, the copyright holder cannot prevent resale.

The process might involve the original buyer transferring a license code, losing access after the sale. However, the lack of a formal resale system raises practical challenges, particularly regarding account registration.

Limitations on Resale:

The seller cannot retain access to the game after resale. The court emphasizes that continued use after sale would infringe on the copyright holder's reproduction rights.

Reproduction Rights and Necessary Copies:

While the distribution right is exhausted, the reproduction right remains. However, the court clarifies that reproduction is permissible for the lawful acquirer's use. This allows the new buyer to download and install the software.

Backup Copies:

Importantly, the court specifically excludes backup copies from this resale right. Reselling backup copies remains prohibited. This is consistent with previous rulings, such as Aleksandrs Ranks & Jurijs Vasilevics v. Microsoft Corp.

This decision significantly impacts the digital games market within the EU, potentially leading to the development of resale platforms and altering the relationship between consumers, publishers, and copyright holders.