Submitted by In the Used Soft GmbH v. Oracle International Corp. case, the Court of Justice of the EU ruled today that it is okay to resell software, regardless of clauses in the software license. This is a pretty big deal, and further affirms that a software license is not necessarily binding. Great news for European consumers.
…will online distribution services have to be changed to allow for resale, or will they actively try to prevent it with technical measures? Somehow I’m suspecting the latter, so the question becomes how far the courts will go in really enforcing this ruling.
The ruling is useless without enforcement. You can’t resell DLC from console stores for example, because it’s all DRMed and tied to your account. All the console vendors are breaking this law, they know it, and they don’t have to do a thing about it. It wouldn’t be doable anyway, they’d have to remove all DRM to allow you to sell your purchases openly and that would “enable piracy” 😐
I don’t think that’s true. Steam allows me to buy something and tie it to my account. It allows me to gift things to others. How hard is it really to remove something from my account and send it to others? The DRM could still be in place. Better yet, the provider could potentially charge a service fee for the resale.
You are confusing things. This ruling clearly states that it is all about EULAs: you cannot deny people the ability to sell the software after you’re done with it simply by slapping such a clause in the EULA, it does absolutely not say that the software must be possible to be transferred to someone else. In other words if the DRM makes it impossible to sell the thing then you’re still sh*t out of luck and there is nothing illegal with that, there is nothing to enforce!
It doesn’t have to be possible, but it does make it illegal to prevent it. So if you can prove a technical hindrance was made for the explicit purpose of breaking the law, well then that is illegal.
You’ve got it wrong (unfortunately, I must add). From the ruling:
In other words: the user of the software is entitled to sell the software without fear of violating the EULA (law trumps EULA), but the vendor on his turn is in his right to do everything possible to make this as difficult as possible, by technical means. This has NOT changed. What HAS changed is that vendors are no longer able to take the legal course and sue those that resell.
This ruling is analogue to the law (at least in Europe) that permits the reverse engineering of software. One can do everything they want to reverse engineer a piece of software for the sake of compatibility, but the vendor does not have to facilitate this by any means whatsoever.
The question is, are digital goods the same as physical? Well, let’s see:
– Some people say they are when they start talking about the right to sell them, the right to modify them, etc.
– But then they claim they’re not when it comes to stealing – eg: pirating an album is not the same as walking into a store and stealing it.
So, which is it? Either they are the same, or they’re not. My stance is that they’re not the same, hence the concept of selling used digital goods (or selling new for that matter) seems rather dumb, especially since the stuff is infinitely copyable anyway.
So what does all this mean? More than likely, it means universal product activation everywhere, except where stuff is already free. In other words, you’re better off trying to find technological ways to keep people from pirating/selling your shit, rather than legal ways. Think it can’t be done technologically? Have they cracked Diablo 3 yet? You keep some (or all) of the program/game bits on the server, and that makes it kind of hard to work around.
Isn’t this about reselling the *license*?
I don’t know, but the concept for trying to enforce a license that’s not technologically enforceable is ludicrous. For example, if you were using a piece of software I wrote, and there was a clause in the license that said you could only use it while standing on one leg, how is that enforceable? Answer: it isn’t. And how is that any different than saying you can only run it on one machine, or that you can’t give it to any of your friends? Answer: it isn’t.
Best chance you’ve got for enforcing a license is to have all the runnable bits (or at least enough to make it impossible to copy) behind a paywall, such that you’re in total control of how/where/when people can use it. But even for movies/music, that still wouldn’t work, since if it can be seen or heard, it can be copied.
Yes. I recall that, during the Psystar case, Apple fans insisted that “one doesn’t actually buy software — one buys a license.”
One doesn’t actually buy software – one rents software at full retail price.
Edited 2012-07-04 04:42 UTC
Here in Finland — I don’t know about other European countries — the law states that if you sell it as a shelf product then it is shelf product, ie. if it quacks like a duck it is a duck. If you only want to sell a license then you need to draw an actual contract for that.
That may be true for now, but there’s plenty of time for Finland to see the light. In this case, the light is green and it comes from an eye on top of a pyramid…
Oh, yeah. That too. I had forgotten that gem.
Thanks!
Undeniably digital and physical goods are different. When you buy digital stuff you’re not buying a copy (copying is essentially free), you’re buying a license. Pirating isn’t stealing, it’s using unlicensed copies. Stealing would be to deprive the owner of his original.
Now for physical goods we have long established and boring laws, but for licenses we have all kinds of “innovations” going on. Companies think they can sell you various limited licenses, e.g. non-transferable. There isn’t actually any reason why I couldn’t sell my license. Sure, I could keep my copy too and continue using it, but that’s just pirating. It’s not any different from me not having any license from start. If I intend to stop using my copy it seems totally fair if I could sell my license for it.
Of course, software companies don’t like this idea. This would create secondary market for software and drive prices down. One difference from physical goods is that used program isn’t any bit inferior to a new copy of the same program. It doesn’t sounds like the end of the world at all, there can be other incentives to by new copies, e.g. customer support, new versions etc. But allowing reselling is giving up some monopoly and profits, so naturally software companies don’t want this.
Except that there’s really no way to force you to stop using it, aside from some invasive DRM. Honestly, I wouldn’t blame developers for being against this. Otherwise, I could just go buy the latest version of Photoshop, make myself a copy, sell the original on Ebay, and keep using the copy I made. Heck, if I bought a digital copy, I could sell it to hundreds of people for $20 a piece and make myself a nice bit of cash
Only thing stopping me is whatever DRM they have built into the product.
Edited 2012-07-04 00:27 UTC
Why would you bother with buying and reselling if you can just download the copy from torents for free and much faster? That wouldn’t be any less legal.
If the software has any kind of copy protection the same protection can be used to make sure you’re not using your copy after you’ve sold the license.
Two reasons:
If selling used software licenses was legal, I wouldn’t have to worry about the copyright police busting me on torrent sites, nor would I have to worry about if the copy is clean
Plus, I could sell copies to multiple people and possibly make some money, while still getting to use the software.
Right, which is exactly my point. Right now, if I try and sell used software on Ebay (in the US), the auction would probably get removed quickly. But if it were legal, the only way to ensure that this sort of thing wouldn’t happen is to put DRM/copy-protection into everything. Hell, even $10 shareware apps would have product activation.
Wow, you’re either really hard trying to twist this ruling, you’re out to spread FUD or you’re just etremely bad at understanding things!
Being allowed to sell the software you bought has nothing to do with copyright laws: if you’re in breach of copyright law then you’re STILL IN BREACH OF THE COPYRIGHT LAW. You do not gain ownership of the copyrights to the software or its assets! Also, this ruling means you are allowed to sell the software as in transferring the ownership of the specific copy you yourself bought to someone else: it does not mean you can just start selling copies of it. You are criminally liable for damages and fraud if you do that or keep on using the software after you’ve sold it away.
There has been a similar ruling here in Finland already about 10 years ago, so yes, I do actually know what I am talking about and you clearly do not. I really, really suggest you go brush up on your understanding of copyright and marketing laws.
WereCatf,
I really don’t understand the loophole he’s trying to describe either… it seems to be a pretty clear cut case of copyright violation to me. It’s strange to suggest that transferring software would somehow bust copyrights.
I do disagree with one of your earlier posts though. I think it is wrong (though not necessarily illegal) for publishers to deny fair use rights using DRM. What’s the point in having rights if we’re not able to practice them?
I never said anything about rightness or wrongness of that so I do not see what you’re disagreeing with me about. I only said that it is not illegal or in violation of this ruling for software to employ DRM and therefore be unable to be resold, and that is a fact, nothing you can disagree with.
WereCatf,
“I only said that it is not illegal or in violation of this ruling for software to employ DRM and therefore be unable to be resold, and that is a fact, nothing you can disagree with.”
I wouldn’t be surprised if it was illegal in some jurisdictions. Also the DMCA has provisions for some small yet significant exceptions, and in those cases, our fair use rights are arguably being breached. I’m not going to assert what is legal, who knows what our rights really are any more.
I’m surprised to hear you say that there’s “nothing you can disagree with”…I beg to differ, I reserve the right to disagree with whatever I please
Edited 2012-07-04 03:55 UTC
Alas, you’re male and I’m female which obviously means my opinion is the superior one and you have no right to disagree
WorknMan,
“If selling used software licenses was legal, I wouldn’t have to worry about the copyright police busting me on torrent sites, nor would I have to worry about if the copy is clean”
I’m having trouble making sense of that. Your selling the software doesn’t duplicate the license. You are required to hand over both the media and the license/keys/serial number/etc. If you keep anything after you’ve sold it, then your in violation of copyright. There’s no loophole.
In any copyright case there must be an investigation as to who has legal possession of a license. Assuming the software was resold with proper sales documentation, then I don’t really see the problem myself, the last recipient would have the documentation, receipt and transactions to prove possession.
Maybe your point is that tracking a software license is next to impossible if it doesn’t include a serial number. True, but the problem still exists without involving any resale.
Maybe your point is that license ownership be falsified such that more than one person appears to be in possession of the serial number. True, but again the problem still exists without involving any resale.
Can you illustrate a specific example where the resale of software causes a copyright problem that’s not otherwise a problem without resale?
Sure. As it stands now, I could buy a piece of software for $100, and sell to 20 different people for $10, and make myself a nice little $100 profit, while still being able to use the software. However, since selling used software is currently illegal in most places, I am limited as to where I can advertise it, plus if I am caught, I might end up with guys in black suits and ties knocking on my front door, wanting to ask me a few questions.
However, in the case where it was legal, I would be freely allowed to put ads up on Craigslist, Ebay, or anywhere else I wanted. When such an ad or auction goes up, nobody really knows if this is the first ttime I’m selling the license or the hundreth.
While its true that I could get busted if I got greedy and tried to sell the same license to a bunch of people and then somebody reported me, I could at least sell every piece of software I ever bought while keeping a backup for my own use, and get a little bit of my money back. Sure, while it’s technically copyright violation, that hasn’t exactly stopped people from pirating in the past, nor from buying software that they knew was illegal.
And why wouldn’t I just torrent it in the first place? I already answered that question a post or two ago
If you really expect to be allowed to sell used software while having no DRM whatsoever, yeah…. good luck with that 
Edited 2012-07-04 03:11 UTC
Nope, you’d be in breach of copyright law.
No, that too would be a violation of copyright and marketing laws.
WorknMan,
“Sure. As it stands now, I could buy a piece of software for $100, and sell to 20 different people for $10, and make myself a nice little $100 profit, while still being able to use the software.”
You didn’t really answer the question to my satisfaction. What is different if you commit this fraud using new software or used software? You go on to say selling used software is illegal (I see used software on ebay though…?). How do you know that any of the software new or used isn’t an infringing copy or hasn’t been copied?
You seem to very confused about owning an item and owning the copyright to that item.
If I buy a book (with active copyrights) i can read it and sell it afterwards as used, or give it away as I see fit, I can also lend it to friends and family if I want to (fair use).
It does not mean I can publish the book either in print or digital formats or rent it out for money or for free, etc. (commercial use).
OMG are people really this thick? DRM has nothing to do with copyright law, nor this ruling. It is not about how easily you could get busted. It is still illegal to sell something you do not own anymore. It is also illegal to maintain a copy of it after selling it, How likely you are to get caught has nothing to do with it.
Oh really? So you think people would keep torrenting if their odds of getting caught were exponentially higher?
It is legal. Just because big business says you can’t doesn’t mean you’re not allowed to. Things you put in a EULA does not magically become valid contract clauses. Contract law exist for a reason.
Dude, that’s an entire different thing. Making copies and selling those is plain old copyright infringement.
What we are talking about is selling the copy you rightfully own to someone else and transfer the ownership.
Not being allowed to sell old software is as absurd as not being allowed to sell your old car.
Really? There are no old games in original packaging for sale on Ebay?
That would be illegal and if you got caught you’d be liable for criminal charges.
Already being done on Warezstore, they provide copies under the premise that you are already licensed but only buying it as an archived copy or to replace lost software.
Of course as it comes with the keys or other unlock tools that kind of rips that defense.
There’s no way to stop me from ripping my CD’s to flac and then selling my collection yet it’s not illegal for me to sell my old CD’s. There’s no way to stop me from photocopying my books and then selling them yet it’s not illegal for me to sell the books I own.
That’s besides the point. I’m sure book publishers would love it if it was illegal to sell old books so that everyone had to buy new books all the time but that doesn’t mean we should implement such a law.
You can do that regardless if it’s legal to sell your old software or not. Making it legal to sell your own copy does not make copyright infringement legal.
That’s what they have to do then but it should not be illegal for me to sell my old software.
Perhaps the only real way to make digital content “resellable” is if the original vendor is required to act as the middle man in a repurchase agreement… Where they can take a cut… Perhaps 15% or something, I don’t know.
Digital content is already “resellable”… really.
According to this ruling, any software (or other digital content) can be resold in the EU.
In the U.S., you can resell CDs and DVDs, not sure about mp3s. However, it is unclear as to whether or not one can resell software, as there have been contradictory rulings.
Bolded by me. The bold part is incorrect. The specific wording of this ruling limits it to executable programs.
Okay. I will rephrase:
WITH this ruling, any software (or other digital content) can be resold in the EU.
Excuse me, I don’t get the distinction. Would you mind to explain? Thanks.
Sure. I’ll put it another way.
There is no law in the EU that prohibits resale of digital content.
So, WITH this new affirmation from the any digital content (including software that is not sold with some sort of time limit) can be resold.
Ah, now I get it. Thank you. I don’t know if there is or is not a law against selling digital content.
However, the use of some digital content is restricted by licenses. I guess I missed this fine distinction when responding to your post. My apologies.
The current ruling pertained to re-selling licenses for the use of digital content in form of executable software, not to licenses for all types of digital content (say audio files). That’s really all what I wanted to say.
Ideally, if DRM interferes with our right to resell software (or any fair use rights for that matter), then the publisher ought to be legally required to work with customers on a case by case for free in order to help us exercise our rights under the law. We should be entitled to compensation should any publisher continue to violate *our* rights after fair use requests.
Not that I want “compensation”, quite the opposite, I want access my fair use rights under the law. Trouble today is that ignoring consumer fair use rights has become standard operating practice. Many software companies habitually take away consumer rights they’re not authorised to in the first place. Without a monetary threat, they’re likely to continue being irrespectful of our rights.
Companies ask customers to respect their rights, the least they can do is respect ours as well.
This court ruling puts a long awaited dent in the FUD (Fear, Uncertainty & Doubt) tactics employed by the software vendors. However, worth noting that Usedsoft’s use of a ‘Notary’ (in part, to hide where the licences came from) was deemed illegal by the German courts and Usedsoft is now also going through insolvency proceedings. There are other secondary software licence suppliers whom adopt more transparent business models that do not rely on the Exhaustion Principle eg: http://www.discount-licensing.com.
I’d be worried that no one in Europe could protect their land or be protected by deed restrictions based on this ruling. The same concept that protects a buyer and seller or real estate also is the basis for this case. One now could say that deed restrictions can not be enforced so a pig farm or condo project could be put in next to your dream home. Good going Europe!
That’s because you obviously do not understand the law or what this ruling is about. To be honest, I’m beginning to question if you understand English.
Say what? This is about the right to sell the things you own and no longer use or like or whatever. Oh, and for your information, it’s perfectly legal to sell your own real estate.
I really don’t see how one could lead to the other. Oh yeah, it’s because there’s no relationship between them at all.
Dude, there’s a reason no-one here, not even the other Windows users, ever agree with you or back you up. It is because…how should I put this nicely…oh yes…you’re a total idiot. Either that or you’re doing an absolutely awful job at playing the devils’ advocate.
You can’t see the truth when you are so set against or for a position it seems.
They are the same. A legal agreement that extends beyond the sale. That is the very basis of a deed restriction. What do you think protects a deed restriction? It is an agreement formed at the time of sale. It continues on to any other sale. It can’t get any more simple than that.
No, when you sell real estate/land/etc. you actually sign paperwork. EULA != paperwork. You do not sign anything when you buy most forms of software. That is one clear difference between these, something that should be ridiculously obvious. Secondly, real estate/land/etc. are not shelf products, something that should be just as obvious.
And pray tell, do these deeds often prohibit you from selling the real estate that you own? No? Didn’t think so.
Even if it did it’s irrelevant though. Deeds are contracts entered into by two parties and no contracts exist when you purchase consumer shelf products. (No, EULAs are not contracts).
What the f*ck are you babbling about? Selling real estate or land has absolutely nothing to do with EULAs or copyrights, and besides, there’s plenty of laws regarding how and where one can build stuff.
Can you please explain how are these things even remotely related?
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