A recent ruling by the Court of Justice of the European Union has officially stated that “an author of software cannot oppose the resale of his ‘used’ licences allowing the use of his programs downloaded from the internet”. In essence, it is now illegal in Europe for companies to try to stop you from selling your used digitally distributed software.
As for what qualifies as “used”? Well, the ruling pretty much covers that as well:
The exclusive right of distribution of a copy of a computer program covered by such a licence is exhausted on its first sale.
And that is that. After a company has their first sale, they can’t do anything else about it. This step is huge in the digital distribution sense. You are now officially allowed to sell your Steam / Origin / GoG games and whatever…if you live in Europe.
This is HUGE.
-- SuperNiceDog is a vicious breed and should be banned from further Guru contests.
There'd have to be some way to de-activate it from your account and then transfer it over to your buyer.
The crazy thing is that unlike with physical copies, a "used" digital game has no chance of being scratched, missing the case, etc. It is exactly the same as a new copy in every way.
Can't they just refer to the agreement stating that the license is non-transferable? Sure you can sell the software but the license prevents its use by any other individual.
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http://img.imgcake.com/nio/bokbokbokpngur.png Mr Caffeine? He was awesome. - Ayuyu
I really hope that the companies find some way to work around this. It could really harm the software business over there. Imagine if people could transfer their Microsoft Office license all over the place? Nobody would buy them new!
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http://img.imgcake.com/nio/bokbokbokpngur.png Mr Caffeine? He was awesome. - Ayuyu
From the bottom of page 1 in the pdf they cite as the source:
"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. 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."
IANAL but it sounds like they could get around this by making the license only last for a limited period of time. It could be something large but finite like 500 years but I don't think there's any reason it can't be 5 years or 1 year.
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Imagine if people could transfer their Microsoft Office license all over the place? Nobody would buy them new!
So where did all the preowned copies come from if there were no new ones sold? Word is a particularly bad example, because most people need a Word Processor, so chances are the only reason they'd be offloading their old license is to upgrade to the new version, something they might be inclined to do more often if they know they can make a little bit back.
Plus, presumably you'd only be able to sell, say, PSN games via PSN, so what's to stop Sony taking a cut of the resale price? That's what they hate about physical reselling, after all, that they don't get any money. With digital reselling, they can.
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"My name is Ezio Auditore da Firenze, and like my father before me, I am an accountant" Nothing is true. Everything is tax-deductible
IANAL but it sounds like they could get around this by making the license only last for a limited period of time. It could be something large but finite like 500 years but I don't think there's any reason it can't be 5 years or 1 year.
If they made it something that short then I would expect the price to be "shortened" accordingly.
One really important point to get clear: the means software publishers cannot prevent sales of licenses. It does not mean that they have to facilitate those sales. This doesn't, for example, mean that Sony have to allow PSN games to be resellable.
KingButz posted...
Can't they just refer to the agreement stating that the license is non-transferable? Sure you can sell the software but the license prevents its use by any other individual.
This ruling explicitly says that those EULAs mean nothing. It builds on the EU precedent that "shrinkwrap" EULAs also mean nothing. The historical position of the courts in the EU has been that the rights that are granted to people cannot be taken away from them even if they sign a contract waiving those rights.
KingButz posted...
I really hope that the companies find some way to work around this.
The good news for people with any sense whatsoever is that there's no workaround. The ruling is very, very clear: 100% of software is included.
KingButz posted...
It could really harm the software business over there.
Imagine the negative effects on business if people were entitled to own their own property. It'd be terrible.
TRE Public Account posted...
IANAL but it sounds like they could get around this by making the license only last for a limited period of time. It could be something large but finite like 500 years but I don't think there's any reason it can't be 5 years or 1 year.
The reason that they're talking about unlimited licenses is that the case in question was dealing with unlimited licenses. If it had been dealing with a limited license there is no reason to believe that the judgement itself would have been any different.
One really important point to get clear: the means software publishers cannot prevent sales of licenses. It does not mean that they have to facilitate those sales. This doesn't, for example, mean that Sony have to allow PSN games to be resellable.
This is the crucial part here. I know people are saying "lol Steam has to let us resell games now" but that is 100% not true. Steam won't be able to, for example, stop you from selling your entire account to someone else. They are not going to let you resell individual games.
One really important point to get clear: the means software publishers cannot prevent sales of licenses. It does not mean that they have to facilitate those sales. This doesn't, for example, mean that Sony have to allow PSN games to be resellable.
Yeah, this this this this this.
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SmartMuffin - Because anything less would be uncivilized - http://img.imgcake.com/smartmuffin/barkleyjpgde.jpg http://dudewheresmyfreedom.com/
Haven't read the opinion, but I wonder, does this apply only to games that are originally purchased with currency, or would it also apply to in-game stuff?
Like, would this mean that Blizzard cannot prevent people from listing WoW characters/gold/etc. on ebay?
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SmartMuffin - Because anything less would be uncivilized - http://img.imgcake.com/smartmuffin/barkleyjpgde.jpg http://dudewheresmyfreedom.com/
Haven't read the opinion, but I wonder, does this apply only to games that are originally purchased with currency, or would it also apply to in-game stuff?
It applies to all software, specifically including software built into hardware (which would mean that BIOSs and firmware were included, apparentlyjust in case any company wanted to try to get smart and prevent the resale of physical items by embedding a CPU in them and licensing the BIOS to people).
SmartMuffin posted...
Like, would this mean that Blizzard cannot prevent people from listing WoW characters/gold/etc. on ebay?
It seems doubtful. "Software" would generally refer to an executable program and the associated files necessary to run it. I can see the interpretation of "software" stretching to things like movies and music, but I can't see how it would stretch as far as in-game items. This is something that may need a proper legal interpretation in future, but it seems to me like there is a definable gap between "software" and other types of data, and that in-game stuff wouldn't count as software.
I really hope that the companies find some way to work around this. It could really harm the software business over there. Imagine if people could transfer their Microsoft Office license all over the place? Nobody would buy them new!
Yeah poor poor Microsoft getting screwed by not being able to sell its way overpriced Microsoft Office
Yeah, it sounds like if I wanted to I could sell my Diablo 3 copy. But when I've attached it to my Battle.net account, it's stuck there. Doesn't sound like this ruling is gonna make Blizzard offer a way to un attach the game from my account so I can sell it.
Same thing with Steam or any other service like that.
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Imagine the negative effects on business if people were entitled to own their own property. It'd be terrible.
Software downloads are not property any more than the music you hear on the radio is property. It's intangible. When you buy a game on Steam/Origin/PSN or wherever, you aren't actually buying the software. You are only buying a license to use the software, which license can be revoked at any time (at least, under the agreement). If the government can nullifying a willing agreement, what can't they nullify?
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http://img.imgcake.com/nio/bokbokbokpngur.png Mr Caffeine? He was awesome. - Ayuyu
This is the crucial part here. I know people are saying "lol Steam has to let us resell games now" but that is 100% not true. Steam won't be able to, for example, stop you from selling your entire account to someone else. They are not going to let you resell individual games.
Yeah, and there's nothing that says that Steam can't ban you for selling your account, even if it is legal.
Honestly, I don't like this legislation. If a customer buys a license from a distributor under a EULA that says "you cannot resell or redistribute this license", then the customer should have to comply with that. If people really wanted to resell their digital licenses, then they could just buy a game from a distributor with a much looser EULA, like the Humble Bundle.
Software downloads are not property any more than the music you hear on the radio is property.
That is not even remotely correct. This court ruling has said that software is property. If you purchase a license, there's a transfer of ownership. The ruling is clear on that.
KingButz posted...
It's intangible.
So? Are you going to wrongly argue that you can't own an intangible thing? Also, if you really are going to claim that it's impossible to own an intangible thing, then I'd really like to see the twisted logic that you'd use to attempt to claim that someone else can.
KingButz posted...
When you buy a game on Steam/Origin/PSN or wherever, you aren't actually buying the software. You are only buying a license to use the software, which license can be revoked at any time (at least, under the agreement).
Yes, you're buying the license. Congratulations. At which point, you own the license.
Also, you don't see to get this: the agreement officially means not a single thing when it contradicts the law.
KingButz posted...
If the government can nullifying a willing agreement, what can't they nullify?
There's two major points I need to make about this:
1. No government was involved here, and the fact that you have brought up "the government" makes me think that you have deep-rooted misunderstandings about this entire case. This was a court case. A court is not a government. A court is explicitly separate from a government, in nearly all countries (and certainly throughout the EU). This is a court, ruling on the law, which is what they are there for.
2. You're attempting to argue that a court (of law) should not be able to nullify an agreement that is against the law. The reason that you don't want courts to be able to do this is to protect the ability of corporations to nullify the law. This is backwards. It is the complete opposite of how things should work.
Software downloads are not property any more than the music you hear on the radio is property.
That is not even remotely correct. This court ruling has said that software is property. If you purchase a license, there's a transfer of ownership. The ruling is clear on that.
KingButz posted...
It's intangible.
So? Are you going to wrongly argue that you can't own an intangible thing? Also, if you really are going to claim that it's impossible to own an intangible thing, then I'd really like to see the twisted logic that you'd use to attempt to claim that someone else can.
KingButz posted...
When you buy a game on Steam/Origin/PSN or wherever, you aren't actually buying the software. You are only buying a license to use the software, which license can be revoked at any time (at least, under the agreement).
Yes, you're buying the license. Congratulations. At which point, you own the license.
Also, you don't see to get this: the agreement officially means not a single thing when it contradicts the law.
KingButz posted...
If the government can nullifying a willing agreement, what can't they nullify?
There's two major points I need to make about this:
1. No government was involved here, and the fact that you have brought up "the government" makes me think that you have deep-rooted misunderstandings about this entire case. This was a court case. A court is not a government. A court is explicitly separate from a government, in nearly all countries (and certainly throughout the EU). This is a court, ruling on the law, which is what they are there for.
2. You're attempting to argue that a court (of law) should not be able to nullify an agreement that is against the law. The reason that you don't want courts to be able to do this is to protect the ability of corporations to nullify the law. This is backwards. It is the complete opposite of how things should work.
Great post, would read again.
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Something to keep in mind is all this EFFECTIVELY means is these servicesare going to need to rework exactly how their EULAs are worded in order to get the intended effect
-- ~Edwardsdv~ Captain America http://www.sethskim.com/Captain%20America%20is%20Back2.jpg
Something to keep in mind is all this EFFECTIVELY means is these servicesare going to need to rework exactly how their EULAs are worded in order to get the intended effect
Perhaps they will, but I don't think it's particularly necessary. There have been similar rulings for boxed software (such as games) stating that the EULA simply doesn't apply where it contradicts the law, and the EULAs in game boxes are still happily denying this reality.
I just opened a nearby game (it happened to be Deus Ex: Human Revolution on PS3, but this applies to any game on any platform) and after locating the license agreements (unsurprisingly in a section of the manual that wasn't in fact labelled), found that it stated that resale was "prohibited unless authorised by SCEE". This is false, but it's there anyway - in capitals, because we all know capitals mean truth, apparently even for lawyers. The law simply ignores statements like that, it doesn't make them illegal as such.
Or maybe we want to protect our right to willfully enter agreements with other parties?
You still have the ability to enter agreements with other parties. You just cannot give up any of your rights within the context of that agreement.
This is where you're getting confused.
A right is an attribute. It is not a mutable, transferable thing. It is yours no matter what. This is part of what makes it a right. If it can be removed from you, in any way, it's not, in fact, a right. It's a privilege.
It would be good for you to consider this very carefully for a minute. If you want to protect any of your "rights", then I promise, I guarantee that the last thing that you want is the ability of an EULA (especially a shrinkwrap EULA) to take them away.
What, for example, would prevent the government from taking away your right to vote? Or to freely associate with people? Or any of your numerous other rights?
You might say that you'd be agreeing to such a contract so why does it matter - but that opens the door to massive abuse, with necessary goods and services having rights-waiving contracts associated with them, effectively preserving the illusion of choice, but removing the reality of it.
foolmor0n posted...
Or is it worth giving up that right in exchange for "protection" from the government?
You may be rather surprised that the right "to wilfully enter agreements with other parties" does not in fact exist.
If it can be removed from you, in any way, it's not, in fact, a right. It's a privilege.
You can't call me the confused one and then turn around and say something like this.
But I can sense a semantics argument coming on. The only part of your post that isn't pointlessly messing with semantics is this:
It would be good for you to consider this very carefully for a minute. If you want to protect any of your "rights", then I promise, I guarantee that the last thing that you want is the ability of an EULA (especially a shrinkwrap EULA) to take them away.
So basically your argument is "I promise I am right". Well you're gonna have to promise harder because you still haven't given any reason for me to change my mind.
Let's say there is an action that is 100% bad for me in every case. I would never do that action, because it is bad for me, obviously. What do I gain by letting the government make a law telling me that I can't do that action? What do I lose by keeping the ability to choose for myself whether to do that action?
-- _foolmo_ 'he says listen to my story this maybe are last chance' - ertyu quoting Tidus
Universal Declaration of Human Rights, article 21, section 1:
"Everyone has the right to take part in the government of his country, directly or through freely chosen representatives."
There may be countries where this right is not expressed through voting, but I very much doubt that you are from one of those countries.
Convicted felons in the United States are not allowed to vote. I'm not sure if there's some fine print in the UDHR that allows this, but regardless that is how things work here.
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You can't call me the confused one and then turn around and say something like this.
Sorry, but you certainly are confused. You're confusing, for example, the right to enter agreements with people with a right that actually exists, when it doesn't.
foolmor0n posted...
But I can sense a semantics argument coming on. The only part of your post that isn't pointlessly messing with semantics is this:
My argument isn't based on semantics. I have, however, found myself in a position where for some reason I've had to explain the concept of a "right".
foolmor0n posted...
So basically your argument is "I promise I am right". Well you're gonna have to promise harder because you still haven't given any reason for me to change my mind.
No, my argument is that if you want to protect your rights, perhaps the best way to do this isn't by giving them up.
foolmor0n posted...
Let's say there is an action that is 100% bad for me in every case. I would never do that action, because it is bad for me, obviously. What do I gain by letting the government make a law telling me that I can't do that action? What do I lose by keeping the ability to choose for myself whether to do that action?
Let's say that there's an analogy that doesn't apply to an argument.....
This is where your point falls down. You're positing a case which is 100% bad for you. In reality, the type of contract that would be offered to you to get you to waive your rights would be, to many people, quite acceptable. It would have some kind of benefit.
You don't have to look far for an example - there's one in terms of what games publishers tried to do with EULAs. They sell you a license to play a game. They attempt to make it so that you cannot sell on this property (which is the license). This would be against your right to own property. In return for (hypothetically) giving up that right, you get a shiny new game. Until the EU courts come along, of course, and, party poopers that they are, say that actually you can't give up rights and now you have both the license and the ability to sell it.
foolmor0n posted...
Give me some examples here, because I'm not sure that you realize how restrictive a free market can be.
I hope you're not talking about something stupid like an EULA removing your right to vote or freedom of religion or something.
There are, thankfully, few examples of contracts that attempt to remove rights from people, since that's not something that a contract can legally do. However, here's some examples of attempts by various organisations to abuse contract law:
Convicted felons in the United States are not allowed to vote. I'm not sure if there's some fine print in the UDHR that allows this, but regardless that is how things work here.
There isn't any such "fine print". The UDHR is actually one of the most concise and readable legal documents of the past century or so.
The fact that convicted felons in the USA aren't allowed to vote doesn't mean that voting isn't a right (in the context of the way in which the government of the USA works). It means that the USA is in violation of the UDHR.
No, my argument is that if you want to protect your rights, perhaps the best way to do this isn't by giving them up.
You're confusing "giving up rights" with "having a choice to enter a contract that limits your rights in the scope of the contract". If I give you the choice to eat a lollipop or shoot yourself in the head, you're not already dead, are you? You still have to willfully shoot yourself in the head.
That is where you are getting confused. You think that corporations can compel you to do anything they want just by putting it in a contract. You still have a choice of which corporation to buy from, unless of course there is a monopoly, or a large imbalance between sellers and buyers, which gives disproportional power to the sellers. The trick is that this can't happen without severely misguided government policies.
Those examples you gave perfectly show what I mean. Why can employers ask for passwords and breach privacy like that? Because there is huge unemployment and huge desperation to acquire ANY job in this country. In a regular market, people could just work for a different company that doesn't have that policy. The job market is NOT a free market, and I'll let you decide whose fault that is. Same with real estate as I'm sure Spain did something similar to the US when it came to warping the housing market.
That last case is pretty interesting, though... so basically the contract between the guy and the bank was for him to adopt the forged checks as his own in exchange for the bank not reporting the wife for forgery? That is definitely fishy and I agree that it shouldn't be a valid contract. But that is not exactly a contract between corporation and customer, it's between corporation and husband of person that criminally hurt corporation.
-- _foolmo_ 'Ulti is like when your parents post something on your facebook status' - Sir Cobain
The fact that convicted felons in the USA aren't allowed to vote doesn't mean that voting isn't a right (in the context of the way in which the government of the USA works). It means that the USA is in violation of the UDHR.
And nobody cares because the UDHR is a meaningless feel-good statement by an impotent organization and not an act by a government.
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Also, as to this case itself, my immediate suspicion is that this will exacerbate certain annoying trends in gaming. Since it will now be even harder for companies to make money off of direct game sales, expect to see more DLC sales tied directly to accounts that will be harder to sell.
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That is where you are getting confused. You think that corporations can compel you to do anything they want just by putting it in a contract.
No, that's not where I am "getting confused". I know that corporations cannot compel the people who sign contracts with them to do whatever they want, and I know why, and the answer is "because law supersedes contracts", not because "the free market somehow".
No, that's not where I am "getting confused". I know that corporations cannot compel the people who sign contracts with them to do whatever they want, and I know why, and the answer is "because law supersedes contracts", not because "the free market somehow".
It's because you won't sign a contract that compels you to do things you don't want to do. That is your protection. If you believe the law will protect you from contracts that are bad for you, think again! The law will protect you from a few kind of contracts.....for most of them, you're on your own. Know what you are signing.
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It's because you won't sign a contract that compels you to do things you don't want to do. That is your protection. If you believe the law will protect you from contracts that are bad for you, think again! The law will protect you from a few kind of contracts.....for most of them, you're on your own. Know what you are signing.
The thing is, as you even acknowledge, the law provides a reasonable level of protection from bad contracts. Why would you want to weaken that? What possible goal would it serve? Who would benefit from the ability to remove basic rights from people through contractual means?
Many contracts, by the way, are signed by people who either feel that they don't have a choice, or really don't have a choice. A loan contract or an employment contract are good examples of contracts to which those circumstances might apply.
Quick edit: I'm also curious about how you feel about shrinkwrap contracts such as game EULAs. They are typically in easy-to-ignore places and theoretically apply to people who not only don't read them, but may not even be aware that they're there.
I absolutely cannot fathom how someone is arguing that preventing voluntary exchange is somehow protecting people's rights. You have this so incredibly backwards it's sad.
Everyone always has a choice. Nobody can make you sign a contract. Just because you're unemployed does not mean you HAVE to enter terms of employment which are unfavorable to you, and I can prove it. Washington State currently has a dramatic shortage of farm labor. They need people to pick the asparagus, and many of the illegal aliens have left the country, and they cannot find legal Americans who are willing to do the job for minimum wage. And yet, there are plenty of unemployed people in Washington State. Care to explain that one?
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