First Sale

Digital resale rights in the EU: the state of play

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What happens when you decide that you no longer want an e-book, film, tv episode, music track or video game which you bought and downloaded?  What happens if you decide you want to give it to a friend, relative or just someone who wants to buy it from you?  We’re in the middle of trying to find out the answer to that question.  It’s being argued out by consumers with businesses and it’s also now attracting the attention of the legal system. I thought my readers in the games and digital creative industries might like a practical summary on what’s been happening recently.  Here we go…

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Do you own your kindle ebooks?

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I just read this quick Wired post on whether you own your kindle ebooks.  This is what they said:

“If convenient euphemisms could somehow be outlawed, the “Buy now with 1-Click” button on Kindle pages would have to be relabeled “License now with 1-Click.” Amazon’s terms of service clearly state that, unlike those bulky slabs of arboreal matter that imparted knowledge to generations past, Kindle books can never be owned in the traditional sense. Instead, your $12.99 merely earns you the right to view the work on your Kindle. This arrangement gives Amazon the authority to snatch back that content if the company thinks you’ve been naughty—say, by copying and distributing ebooks or by engaging in fraud with your account. (more…)

Can the next generation consoles block used games?

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The next generation Microsoft and Sony games consoles – Sony PlayStation 4 and the newly announced Xbox One – are coming pretty soon now.  There’s been much speculation about to what extent they might attempt to block used games sales, or even sharing of games.  For example, have a look at this BBC article.  Can they actually do that legally? (more…)

Games law update, October 2012

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Hi everyone – I’m sorry there’s been a few months gap since the last games law update, but it’s been pretty busy in my personal life and I’m afraid my assiduous squirreling away of useful links for you suffered.  Here’s October 2012 in brief to help make amends… (more…)

The legality of second hand software sales in the EU

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The second hand sale of physical and digital software has effectively been declared legal, according to a judgment published by the Court of Justice of the European Union today.  This has the potential to have a real impact on the way that software is sold and consumed – but at the same time the case raises more questions than it answers, so we’re really not in a clear cut situation at all.  Read on for more details… (more…)

Are second hand software sales legal?

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The second hand sale of software excites lots of emotive debate: is it a good thing for consumers by giving them choices at more flexible price points, or is it killing publishers? Both?  While that debate continues to rage, a couple of recent legal cases have got me thinking: are second hand software sales actually legal?  Interestingly, one is a US case and the other is a European Union case, so here’s the Transatlantic perspective… (more…)

What Vernor v Autodesk means for games

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Edit: the case name is ofc Vernor v Autodesk, not Vernor v AutoCAD – thanks Brian!

The recent US case of Vernor v Autodesk has caused a storm of controversy over whether you actually own the software that you purchase, or just license it (meaning that you can’t then sell it on to others).  This has garned a lot of tech press attention, from Wired to Cnet

I spoke with Gamesindustry.biz last week about its (potentially significant) implications for the games industry, specifically the second hand sales market.  Here’s the original piece and here’s what I said: 
“A US appeal court’s decision to utilise a EULA to judge the legitimacy of second hand software sales could prove to be a crushing blow to the used games market if it serves as a precedent to the rest of the industry, GamesIndustry.biz has been told.

Gamerlaw’s Jas Purewal said that the use of the terms of an End User Licence Agreement to prevent the resale of second hand software could prove to be the crucial factor in the next stage of major publishers’ battle against the second hand market.

The US court of Appeals for the Ninth Circle recently reversed a decision to allow a man to sell copies of design program AutoCAD via his eBay business. Their decision was based on the exact terms of the EULA, which stated that what was being purchased was a licence to use the software, rather than the software itself, and that the licence was non-transferable. These terms are relatively common in videogame EULAs.
“EULAs have been coming under increasing pressure and scrutiny in recent years which is why they’re being more and more carefully drafted, and there’s increasing consumer pressure on EULA’s too,” Purewal told GamesIndustry.biz.


“It’s testing times for the EULA, but what hasn’t been tested is whether EULA’s can be used to prevent second hand sales in the UK altogether. Obviously the point in this case is that those arguments are now being made in the US – and the decision from the courts at the moment seems to be that a EULA can be used to prevent second hand sales, which has a very wide potential application, not just to games but to all forms of software, as well as to books and music.


“Very much the future of the second hand market lies in the balance…It’s very complicated and it’s very early. Certainly as an off the cuff observation, is that this sounds, potentially, like an absolute goldmine for the US games industry if they can actually use it and push for a stop to second hand sales, but that’s going to be incredibly litigious.”


Purewal was keen to stress that there is no immediate threat to the sector, however, as there is no way to directly transfer the ruling outside of the US.


“This is very much going in the states at the moment. The decision was made upon detailed provisions of US law, it relates to consumers who are buying software in the US, it has no bearing on people in the UK or Europe, although if there is any similar litigation on similar issues, brought here, then you could see similar arguments being made.


“Whether or not that would actually wash is far too much like gazing into the crystal ball. It’s far too premature. What I would say is that the consumer protection laws are much stronger in the UK than they are in the US, it may be that a more consumer friendly approach may be advanced. “


Game rental companies could potentially be affect by the longterm ramifications of the ruling, too, as they would be covered under the same EULAs as regular consumers.


“The American Library association, the Electronic frontier foundation and the association of college and research libraries all made submissions in relation to this litigation. They were essentially saying the same thing, that the precedent which this sets could be very harmful to all forms of resale, not just software, but books or any other kind of works because similar logic could apply,” Purewal argued.


“The court saw the force of those arguments but they said it didn’t affect the legal decision. What they usually mean when they say that is that it’s up to the legislature, congress in the states or parliament here, to actually decide the issue one way or the other.” 

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