http://www.rockpapershotgun.com/2012/07/03/crikey-eu-rules-you-can-resell-downloaded-games/
QuoteThe Court Of Justice of the European Union has just ruled that people should be able to resell downloaded games. In an environment where publishers are trying to destroy basic consumer rights like the ability to resell physical products you've paid for, this could be one heck of a turnaround for customers. And that's no matter what it might say in the EULAs. This could have absolutely enormous implications on how services like Steam, Origin, GamersGate and the like work, and finally restore some rights back to the gamer.
The draconian and almost inevitably unenforceable rules we all pretend we've read and agreed to whenever we buy an online game are packed with ridiculous attempts to remove our rights of ownership. At best, when those rules are held to their letter, we're long-term renting the games, with no rights to protect their being taken away from us at any point. So a ruling saying we have enough ownership that we can actually sell them on to others is a massive difference. Of course, it does ask one rather huge question: Er, how?
The preliminary ruling states,
Quote"The first sale in the EU of a copy of a computer program by the copyright holder or with his consent exhausts the right of distribution of that copy in the EU. A rightholder who has marketed a copy in the territory of a Member State of the EU thus loses the right to rely on his monopoly of exploitation in order to oppose the resale of that copy... The principle of exhaustion of the distribution right applies not only where the copyright holder markets copies of his software on a material medium (CD-ROM or DVD) but also where he distributes them by means of downloads from his website."
This was a result of software developers Oracle taking German company UsedSoft to court for reselling licenses to Oracle products. However, after reaching the European Court, a surprise blow came against the big publisher. And it has massive implications for all of online purchases, including games bought from places such as Steam, Origin, GamersGate, etc. And even further implications for those publishers attempting to ban the far more commonplace reselling of boxed products too.
The specific rule seems to be that if a license is sold indefinitely – i.e. not a license for a year, or similar – that the rightholder "exhausts his exclusive distribution right".
Quote"Such a transaction involves a transfer of the right of ownership of the copy."
That sentence is a really massive deal. It's the very first time there has been any official sense of ownership via digital distribution, and if it gets implemented by courts, it's going to change a great deal. From our having the legal right to sell games in our Origin accounts, right down to surely taking away the ability for companies like Valve and EA to block customers' access to their purchased games for other infractions.
Right now we have companies like Microsoft and Sony looking for ways to make reselling of their products impossible for their next generation of consoles, and presumably relying heavily on the perceived redundancy of the argument if those games were purchased online (as surely the next gen consoles will want to focus on). But pow, maybe not. With a ruling that states,
Quote"The Court observes in particular that limiting the application of the principle of the exhaustion of the distribution right solely to copies of computer programs that are sold on a material medium would allow the copyright holder to control the resale of copies downloaded from the internet and to demand further remuneration on the occasion of each new sale, even though the first sale of the copy had already enabled the rightholder to obtain appropriate remuneration. Such a restriction of the resale of copies of computer programs downloaded from the internet would go beyond what is necessary to safeguard the specific subject-matter of the intellectual property concerned."
this whole deal just got an awful lot more interesting. It appears to be directly stating that it is inappropriate for copyright holders to insist on the right to be remunerated with every re-sale, which could even have legal implications for the current systems various console publishers have introduced, forcing pre-owned customers to pay a tithe before the game will work properly.
The ruling also makes it clear that if someone does resell a digital copy of a product, they must remove their version of it from their computer – because at that point it does become a copyright violation, as it's become a reproduction, not a resale. But fascinatingly, it adds, "However, the directive authorises any reproduction that is necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose. Such reproduction may not be prohibited by contract." What does that mean for the current exploits publishers are using, too? Could they now be illegal?
How companies like Steam, EA, etc will react will be very interesting. Their current infrastructures certainly don't support reselling, and they'd probably ban your account if they caught you trying to. This is a ruling whose implications could stretch a very long way. There are bound to be challenges to the ruling made, and we can assume this one will stay in courts for a good while longer.
Wow.
I'm glad at least the European institutions are not in the pocket of big IP providers, since almost every other government is. Perhaps the world government is not such a bad idea after all - since only at the supra-national level it seems the governments (which ultimately have at least some sort of democratic legitimacy) are able to stand their ground to international corporations (which lack any whatsoever).
:yeah:
Now, if they would also rule that, within the Common Market, publishers can't restrict digital availability of products (e.g. download/media being available in Germany but not Austria or vice versa) then we'd be a big step ahead.
Quote from: Syt on July 03, 2012, 11:51:35 AM
Now, if they would also rule that, within the Common Market, publishers can't restrict digital availability of products (e.g. download/media being available in Germany but not Austria or vice versa) then we'd be a big step ahead.
I think we are getting there. So far the European Commission has been achieving this piecemeal by striking deals with individual providers (Amazon and Apple come to mind, both agreeing voluntarily to provide the same products, more or less, throughout the EU). And the European Union has just killed ACTA (despite several EU governments eagerly wanting to adopt it), so that's a plus.
This is great. Good catch.
Quote from: Syt on July 03, 2012, 11:51:35 AM
Now, if they would also rule that, within the Common Market, publishers can't restrict digital availability of products (e.g. download/media being available in Germany but not Austria or vice versa) then we'd be a big step ahead.
I am sure that will come eventually. Either by legislation or by court ruling.
Haven't read the whole thing, but seems like it might be conflating copyright rights with contractual licensing terms.
In general, this seems to be a very good verdict. Will be interesting how that works with games like Diablo III where you need an online account in addition to the digital download you buy.
Quote from: Martinus on July 03, 2012, 11:54:15 AM
So far the European Commission has been achieving this piecemeal by striking deals with individual providers (Amazon and Apple come to mind, both agreeing voluntarily to provide the same products, more or less, throughout the EU)
Not sure if Amazon is a good example, though. Digital downloads (Kindle or MP3s) from the UK site don't work for me as I don't have a UK billing address - I have to go through Amazon.de . . . even though I can order physical products from Amazon.co.uk (mind you, Amazon is pretty quick in making kindle books available on .de if you point out a book on .co.uk you'd like).
Similar, iTunes only allows me to buy on Austrian iTunes. UK with its vastly superior choice of TV series and movies is right out.
I know you can circumvent that with fake billing addresses, but that's not the point.
Quote from: Martinus on July 03, 2012, 11:43:40 AM
I'm glad at least the European institutions are not in the pocket of big IP providers, since almost every other government is. Perhaps the world government is not such a bad idea after all - since only at the supra-national level it seems the governments (which ultimately have at least some sort of democratic legitimacy) are able to stand their ground to international corporations (which lack any whatsoever).
Arguably one of the big reasons that multinational corps have more difficulty influencing supra-national bodies is precisely because those bodies are less accountable and less democratic than national or sub-national bodies.
So what's up with the DRM for Jutland?
Quote from: The Minsky Moment on July 03, 2012, 12:42:15 PMArguably one of the big reasons that multinational corps have more difficulty influencing supra-national bodies is precisely because those bodies are less accountable and less democratic than national or sub-national bodies.
The ECJ doesn't seem to be more or less democratic than our national court system and the anti-trust/competition agency in Brussels seems to be slightly more democratically accountable as our national agency is led by bureaucrats, whereas the EU commissioner for competition at least has to be confirmed by the EU parliament.
The ruling sounds fine in theory. It's the implementation that is bound to get messy.
It should be interesting what kind of repercussions this ruling will have. Not only for software but also other digitally bought articles like iTunes movies or MP3s.
Quote from: Admiral Yi on July 03, 2012, 01:37:01 PM
The ruling sounds fine in theory. It's the implementation that is bound to get messy.
I'm working out how they even could implement it. This does not seem like that good a ruling. Does it also mean that digital distributor also only a finine number of games it can sell?
Quote from: Razgovory on July 03, 2012, 01:52:58 PM
Does it also mean that digital distributor also only a finine number of games it can sell?
They already do.
Quote from: The Minsky Moment on July 03, 2012, 12:42:15 PM
Quote from: Martinus on July 03, 2012, 11:43:40 AM
I'm glad at least the European institutions are not in the pocket of big IP providers, since almost every other government is. Perhaps the world government is not such a bad idea after all - since only at the supra-national level it seems the governments (which ultimately have at least some sort of democratic legitimacy) are able to stand their ground to international corporations (which lack any whatsoever).
Arguably one of the big reasons that multinational corps have more difficulty influencing supra-national bodies is precisely because those bodies are less accountable and less democratic than national or sub-national bodies.
Oh that's true. But they are still more democratically accountable than multinational corps, which is my point.
Quote from: Grey Fox on July 03, 2012, 01:58:47 PM
Quote from: Razgovory on July 03, 2012, 01:52:58 PM
Does it also mean that digital distributor also only a finine number of games it can sell?
They already do.
Really? What is the limit? I've never seen Steam say "sold out". I suppose the best response to this is digital distributor to alter their contracts from purchase to rent.
Quote from: Razgovory on July 03, 2012, 03:21:02 PM
Quote from: Grey Fox on July 03, 2012, 01:58:47 PM
Quote from: Razgovory on July 03, 2012, 01:52:58 PM
Does it also mean that digital distributor also only a finine number of games it can sell?
They already do.
Really? What is the limit? I've never seen Steam say "sold out".
and neither will you now. a bit of a strawman not?
Quote from: CountDeMoney on July 03, 2012, 12:43:35 PM
So what's up with the DRM for Jutland?
Jim Rose is still a prick.
Awesome!
Quote from: Crazy_Ivan80 on July 03, 2012, 03:43:34 PM
Quote from: Razgovory on July 03, 2012, 03:21:02 PM
Quote from: Grey Fox on July 03, 2012, 01:58:47 PM
Quote from: Razgovory on July 03, 2012, 01:52:58 PM
Does it also mean that digital distributor also only a finine number of games it can sell?
They already do.
Really? What is the limit? I've never seen Steam say "sold out".
and neither will you now. a bit of a strawman not?
Well no. I was under the impression that scarcity of items was not a factor in digital distribution. Scarcity of bandwidth or electrons, sure, but not titles.
Quote from: Razgovory on July 03, 2012, 05:28:09 PM
Well no. I was under the impression that scarcity of items was not a factor in digital distribution. Scarcity of bandwidth or electrons, sure, but not titles.
Steam can run out of keycodes.
Quote from: jimmy olsen on July 03, 2012, 05:18:56 PM
Awesome!
Not at all. The ECJ mandating pain-in-the-ass DRM is troublesome.
Quote from: Neil on July 03, 2012, 05:53:18 PM
Quote from: Razgovory on July 03, 2012, 05:28:09 PM
Well no. I was under the impression that scarcity of items was not a factor in digital distribution. Scarcity of bandwidth or electrons, sure, but not titles.
Steam can run out of keycodes.
Possibly, but how many variables are there for one game? There are like 25 different digits which can use either a number or a letter. I'm not good at math and don't know how to figure how many possible codes there are for one game. Hundreds of Trillions? And even if they did, they could just get rid of the requirement.
Quote from: Razgovory on July 03, 2012, 06:51:46 PM
Quote from: Neil on July 03, 2012, 05:53:18 PM
Quote from: Razgovory on July 03, 2012, 05:28:09 PM
Well no. I was under the impression that scarcity of items was not a factor in digital distribution. Scarcity of bandwidth or electrons, sure, but not titles.
Steam can run out of keycodes.
Possibly, but how many variables are there for one game? There are like 25 different digits which can use either a number or a letter. I'm not good at math and don't know how to figure how many possible codes there are for one game. Hundreds of Trillions? And even if they did, they could just get rid of the requirement.
Digital retail work like brick & mortar retailers. They buy a finite amount of games from the publishers. While the B&M get a dvd in a box, the Digital retailer gets codes & a data file.
meh. if it is in the contract that you are buying a license to use something and you cannot resell the license, why is the court able to change this?
Also, stuff like, if I buy a Bluray for home use, and sell it to a cinema, who then use it to show it to an audience... I guess that's still not okay right? So in that case the license contract is holy. But why not when it comes to reselling?
Stupid.
Quote from: The Brain on July 04, 2012, 07:09:29 AM
What kind of cinema would show Blu-Ray crap? A gypsy cinema?
it was just an example for ffs. change it to selling your bluray disc to a bluray renting shop. there
Quote from: Grey Fox on July 04, 2012, 06:54:03 AM
Quote from: Razgovory on July 03, 2012, 06:51:46 PM
Quote from: Neil on July 03, 2012, 05:53:18 PM
Quote from: Razgovory on July 03, 2012, 05:28:09 PM
Well no. I was under the impression that scarcity of items was not a factor in digital distribution. Scarcity of bandwidth or electrons, sure, but not titles.
Steam can run out of keycodes.
Possibly, but how many variables are there for one game? There are like 25 different digits which can use either a number or a letter. I'm not good at math and don't know how to figure how many possible codes there are for one game. Hundreds of Trillions? And even if they did, they could just get rid of the requirement.
Digital retail work like brick & mortar retailers. They buy a finite amount of games from the publishers. While the B&M get a dvd in a box, the Digital retailer gets codes & a data file.
Can you prove this?
Quote from: Razgovory on July 04, 2012, 07:24:50 AM
Quote from: Grey Fox on July 04, 2012, 06:54:03 AM
Quote from: Razgovory on July 03, 2012, 06:51:46 PM
Quote from: Neil on July 03, 2012, 05:53:18 PM
Quote from: Razgovory on July 03, 2012, 05:28:09 PM
Well no. I was under the impression that scarcity of items was not a factor in digital distribution. Scarcity of bandwidth or electrons, sure, but not titles.
Steam can run out of keycodes.
Possibly, but how many variables are there for one game? There are like 25 different digits which can use either a number or a letter. I'm not good at math and don't know how to figure how many possible codes there are for one game. Hundreds of Trillions? And even if they did, they could just get rid of the requirement.
Digital retail work like brick & mortar retailers. They buy a finite amount of games from the publishers. While the B&M get a dvd in a box, the Digital retailer gets codes & a data file.
Can you prove this?
Steam is block from work but It's all over their forum. They regularly run out of keys when games have unexpected success or from a sale.
Here's an example from the game Risen : http://www.rpgwatch.com/forums/showthread.php?t=11835
All in all, this is fuckin' interventionalism again.
I know about at least one distributor offering the chance to sell back your games, Greenman Gaming. People still haven't flocked there. Why? Because most doesn't give a fuck.
When this becomes an issue, place like Steam will change or go out of business.
Quote from: Grey Fox on July 04, 2012, 07:27:45 AM
Quote from: Razgovory on July 04, 2012, 07:24:50 AM
Quote from: Grey Fox on July 04, 2012, 06:54:03 AM
Quote from: Razgovory on July 03, 2012, 06:51:46 PM
Quote from: Neil on July 03, 2012, 05:53:18 PM
Quote from: Razgovory on July 03, 2012, 05:28:09 PM
Well no. I was under the impression that scarcity of items was not a factor in digital distribution. Scarcity of bandwidth or electrons, sure, but not titles.
Steam can run out of keycodes.
Possibly, but how many variables are there for one game? There are like 25 different digits which can use either a number or a letter. I'm not good at math and don't know how to figure how many possible codes there are for one game. Hundreds of Trillions? And even if they did, they could just get rid of the requirement.
Digital retail work like brick & mortar retailers. They buy a finite amount of games from the publishers. While the B&M get a dvd in a box, the Digital retailer gets codes & a data file.
Can you prove this?
Steam is block from work but It's all over their forum. They regularly run out of keys when games have unexpected success or from a sale.
Here's an example from the game Risen : http://www.rpgwatch.com/forums/showthread.php?t=11835
What about games sites like GOG.com?
Quote from: Razgovory on July 04, 2012, 07:32:00 AM
Quote from: Grey Fox on July 04, 2012, 07:27:45 AM
Quote from: Razgovory on July 04, 2012, 07:24:50 AM
Quote from: Grey Fox on July 04, 2012, 06:54:03 AM
Quote from: Razgovory on July 03, 2012, 06:51:46 PM
Quote from: Neil on July 03, 2012, 05:53:18 PM
Quote from: Razgovory on July 03, 2012, 05:28:09 PM
Well no. I was under the impression that scarcity of items was not a factor in digital distribution. Scarcity of bandwidth or electrons, sure, but not titles.
Steam can run out of keycodes.
Possibly, but how many variables are there for one game? There are like 25 different digits which can use either a number or a letter. I'm not good at math and don't know how to figure how many possible codes there are for one game. Hundreds of Trillions? And even if they did, they could just get rid of the requirement.
Digital retail work like brick & mortar retailers. They buy a finite amount of games from the publishers. While the B&M get a dvd in a box, the Digital retailer gets codes & a data file.
Can you prove this?
Steam is block from work but It's all over their forum. They regularly run out of keys when games have unexpected success or from a sale.
Here's an example from the game Risen : http://www.rpgwatch.com/forums/showthread.php?t=11835
What about games sites like GOG.com?
GOG.com is mostly the retail outfit of a publisher but I don't know how it works for their older games. It's a good question.
Tamas, the more you post on Languish, the more I am convinced there is a reason you are stuck in a shitty job in Hungary. You are just not very bright.
Your post implied that a digital distributor had to actually purchase the codes. After all, brick and mortar stores have to purchase each copy of a game. I'm not seeing evidence of this. What I see is a licence to sell the games not the distributorship purchasing each CD key and then selling it to a customer.
Quote from: Martinus on July 04, 2012, 07:44:49 AM
Tamas, the more you post on Languish, the more I am convinced there is a reason you are stuck in a shitty job in Hungary. You are just not very bright.
We here also are fully aware why suckling on toes is part of your personality.
Quote from: Razgovory on July 04, 2012, 07:47:09 AM
Your post implied that a digital distributor had to actually purchase the codes. After all, brick and mortar stores have to purchase each copy of a game. I'm not seeing evidence of this. What I see is a licence to sell the games not the distributorship purchasing each CD key and then selling it to a customer.
Grumbler?
Quote from: The Brain on July 04, 2012, 07:09:29 AM
What kind of cinema would show Blu-Ray crap? A gypsy cinema?
:secret:
A cinematheque.
Quote from: Razgovory on July 03, 2012, 06:51:46 PM
Quote from: Neil on July 03, 2012, 05:53:18 PM
Quote from: Razgovory on July 03, 2012, 05:28:09 PM
Well no. I was under the impression that scarcity of items was not a factor in digital distribution. Scarcity of bandwidth or electrons, sure, but not titles.
Steam can run out of keycodes.
Possibly, but how many variables are there for one game? There are like 25 different digits which can use either a number or a letter. I'm not good at math and don't know how to figure how many possible codes there are for one game. Hundreds of Trillions? And even if they did, they could just get rid of the requirement.
The code has to fit an algorithm, and they can't get rid of the requirement.
Quote from: Razgovory on July 04, 2012, 07:32:00 AM
What about games sites like GOG.com?
No DRM, and thus no problem.
Quote from: Neil on July 04, 2012, 09:22:41 AM
Quote from: Razgovory on July 03, 2012, 06:51:46 PM
Quote from: Neil on July 03, 2012, 05:53:18 PM
Quote from: Razgovory on July 03, 2012, 05:28:09 PM
Well no. I was under the impression that scarcity of items was not a factor in digital distribution. Scarcity of bandwidth or electrons, sure, but not titles.
Steam can run out of keycodes.
Possibly, but how many variables are there for one game? There are like 25 different digits which can use either a number or a letter. I'm not good at math and don't know how to figure how many possible codes there are for one game. Hundreds of Trillions? And even if they did, they could just get rid of the requirement.
The code has to fit an algorithm, and they can't get rid of the requirement.
and you don't need more keys than people, so you can easily cut out like million of combinations. :)
Quote from: Tamas on July 04, 2012, 07:29:27 AM
All in all, this is fuckin' interventionalism again.
I know about at least one distributor offering the chance to sell back your games, Greenman Gaming. People still haven't flocked there. Why? Because most doesn't give a fuck.
When this becomes an issue, place like Steam will change or go out of business.
Right? What kind of crazy, liberal, interventionist agenda would it take for a court to rule that one actually owns something that one bought and paid for?
And as for your stupid Blue-Ray examples, the problem is that the cinema or rental shop is violating the license that was transfered to them in the re-sale.
Quote from: sbr on July 04, 2012, 12:49:57 PM
Quote from: Tamas on July 04, 2012, 07:29:27 AM
All in all, this is fuckin' interventionalism again.
I know about at least one distributor offering the chance to sell back your games, Greenman Gaming. People still haven't flocked there. Why? Because most doesn't give a fuck.
When this becomes an issue, place like Steam will change or go out of business.
Right? What kind of crazy, liberal, interventionist agenda would it take for a court to rule that one actually owns something that one bought and paid for?
And as for your stupid Blue-Ray examples, the problem is that the cinema or rental shop is violating the license that was transfered to them in the re-sale.
Did you actually buy all rights to the game?
Quote from: sbr on July 04, 2012, 12:49:57 PM
Quote from: Tamas on July 04, 2012, 07:29:27 AM
All in all, this is fuckin' interventionalism again.
I know about at least one distributor offering the chance to sell back your games, Greenman Gaming. People still haven't flocked there. Why? Because most doesn't give a fuck.
When this becomes an issue, place like Steam will change or go out of business.
Right? What kind of crazy, liberal, interventionist agenda would it take for a court to rule that one actually owns something that one bought and paid for?
And as for your stupid Blue-Ray examples, the problem is that the cinema or rental shop is violating the license that was transfered to them in the re-sale.
Do I like that I can't re-sell my digital games? No. Would I prefer to be able to? hell yeah. It's a retarded policy to ban this.
Did I accept a contract which forbid it for me to re-sell it when I purchased the game? Yes. Was I forced to? No.
It might be just me, but once I agree to something I don't go crying over it when I change my mind.
What is?
Quote from: Tamas on July 04, 2012, 01:03:43 PM
Do I like that I can't re-sell my digital games? No. Would I prefer to be able to? hell yeah. It's a retarded policy to ban this.
Did I accept a contract which forbid it for me to re-sell it when I purchased the game? Yes. Was I forced to? No.
It might be just me, but once I agree to something I don't go crying over it when I change my mind.
Must be just you. The rest of us live under the rule of law and here contractual freedom is not unlimited. If there is something in the terms & conditions of a product you buy that is against the law, that clause is invalid, no matter whether you voluntarily agreed to it or not.
Quote from: Zanza on July 04, 2012, 01:10:31 PM
Quote from: Tamas on July 04, 2012, 01:03:43 PM
Do I like that I can't re-sell my digital games? No. Would I prefer to be able to? hell yeah. It's a retarded policy to ban this.
Did I accept a contract which forbid it for me to re-sell it when I purchased the game? Yes. Was I forced to? No.
It might be just me, but once I agree to something I don't go crying over it when I change my mind.
Must be just you. The rest of us live under the rule of law and here contractual freedom is not unlimited. If there is something in the terms & conditions of a product you buy that is against the law, that clause is invalid, no matter whether you voluntarily agreed to it or not.
Well, if a law banned that condition at the time when the contract was signed, then of course I withdraw everything I said. But banning something after the fact, is what our government does, not civilized ones.
Without thinking this over very much what wouldn't seem extremely unreasonable to me would be if they instead made vendors use a different word than "buy [a game]" about what you do as a customer when the rights that come with the purchase are very limited. Saying that you "buy" a game could possibly be seen as misleading.
Generally speaking if you don't like the terms that are offered then simply don't buy the product.
Quote from: Tamas on July 04, 2012, 01:11:59 PMWell, if a law banned that condition at the time when the contract was signed, then of course I withdraw everything I said. But banning something after the fact, is what our government does, not civilized ones.
So do you allege that the ECJ did do that here? A post facto change of the law?
Quote from: The Brain on July 04, 2012, 01:13:06 PM
Generally speaking if you don't like the terms that are offered then simply don't buy the product.
Generally speaking, if the terms that come with the product violate the law, buy the product anyway and ignore the terms.
Quote from: Tamas on July 04, 2012, 01:11:59 PM
Quote from: Zanza on July 04, 2012, 01:10:31 PM
Quote from: Tamas on July 04, 2012, 01:03:43 PM
Do I like that I can't re-sell my digital games? No. Would I prefer to be able to? hell yeah. It's a retarded policy to ban this.
Did I accept a contract which forbid it for me to re-sell it when I purchased the game? Yes. Was I forced to? No.
It might be just me, but once I agree to something I don't go crying over it when I change my mind.
Must be just you. The rest of us live under the rule of law and here contractual freedom is not unlimited. If there is something in the terms & conditions of a product you buy that is against the law, that clause is invalid, no matter whether you voluntarily agreed to it or not.
Well, if a law banned that condition at the time when the contract was signed, then of course I withdraw everything I said. But banning something after the fact, is what our government does, not civilized ones.
Technology is ahead of the law on this, though. The government can't reasonably be expected to legislate in advance on every potential practice that emerging technologies might make possible.
Quote from: Zanza on July 04, 2012, 01:16:23 PM
Quote from: The Brain on July 04, 2012, 01:13:06 PM
Generally speaking if you don't like the terms that are offered then simply don't buy the product.
Generally speaking, if the terms that come with the product violate the law, buy the product anyway and ignore the terms.
You do business with criminals? Good to know.
I am pretty sure most invalid terms & conditions do not actually constitute a crime by the vendor, they just aren't judicially enforceable by him.
Quote from: Razgovory on July 04, 2012, 12:59:01 PM
Quote from: sbr on July 04, 2012, 12:49:57 PM
Quote from: Tamas on July 04, 2012, 07:29:27 AM
All in all, this is fuckin' interventionalism again.
I know about at least one distributor offering the chance to sell back your games, Greenman Gaming. People still haven't flocked there. Why? Because most doesn't give a fuck.
When this becomes an issue, place like Steam will change or go out of business.
Right? What kind of crazy, liberal, interventionist agenda would it take for a court to rule that one actually owns something that one bought and paid for?
And as for your stupid Blue-Ray examples, the problem is that the cinema or rental shop is violating the license that was transfered to them in the re-sale.
Did you actually buy all rights to the game?
Nope, not usually.
Digital distribution of software (or anything) is so new that the real world is so far ahead of the law that things need to be re-defined one way or another. That is usually where courts come in and that is what was being decided in the case in the OP.
So that court says you have a lot more rights in regards to the game/software than previously thought.
Quote from: Zanza on July 04, 2012, 01:20:46 PM
I am pretty sure most invalid terms & conditions do not actually constitute a crime by the vendor, they just aren't judicially enforceable by him.
Well that settles it then.
Quote from: Zanza on July 04, 2012, 01:15:15 PM
Quote from: Tamas on July 04, 2012, 01:11:59 PMWell, if a law banned that condition at the time when the contract was signed, then of course I withdraw everything I said. But banning something after the fact, is what our government does, not civilized ones.
So do you allege that the ECJ did do that here? A post facto change of the law?
I honestly have no idea. I skimmed through the article and couldnt find any specifics about which already existing EU law they based their decision on.
But reading the article did raise some interesting points. Like, you are supposed to remove the product from your computer after selling it, but the distributor is not allowed to stop your buyer from copying it over to his computer, so by effect, copy-protection schemes are from today banned in the EU.
Which might sound as a great idea, but trust me, those had their effects. Not enough effect to make it wortwhile fucking with legal customer, maybe, but they did. I have spent enough time pirating games to know how much more comfortable it is to buy legal copies. That's over.
There will be no distinguishable difference between using a pirated version, or a legal one. Any incentive to actually a buy a software product is now lost.
Also, the original lawsuit, as I read, was about a German company re-selling it's Oracle license. Does it make sense to re-sell your mass-license for an application and the developer remaining be obliged to support that version? Yes I think so. But I recon it is going to be a huge financial hit for the industry.
That the scarcity is not a function of the limitation of the ability to copy, but a function of the codes used for DRM. Because GOG is selling old games that they've been allowed to sell without DRM, they can sell as much as they want.
Quote from: Tamas on July 04, 2012, 01:25:58 PMso by effect, copy-protection schemes are from today banned in the EU
Doubtful. Example from Germany and Austria: the right to personal backup copies of your media (movies, software etc.) is acknowledged. However, it's illegal to circumvent effective copy protection.
(Never mind that you pay a copyright fee on almost all empty data bstorage: audio tapes, CDs, but also on printers, photocopiers, and since recently on hard drives hard drives . . . because all of the lost sales from copies made with/to these things.)
Quote from: Neil on July 04, 2012, 01:31:15 PM
That the scarcity is not a function of the limitation of the ability to copy, but a function of the codes used for DRM. Because GOG is selling old games that they've been allowed to sell without DRM, they can sell as much as they want.
Also, GOG prices are usually in an area where reselling is not worth the hassle.
Quote from: Syt on July 04, 2012, 01:32:34 PM
Quote from: Tamas on July 04, 2012, 01:25:58 PMso by effect, copy-protection schemes are from today banned in the EU
Doubtful. Example from Germany and Austria: the right to personal backup copies of your media (movies, software etc.) is acknowledged. However, it's illegal to circumvent effective copy protection.
(Never mind that you pay a copyright fee on almost all empty data bstorage: audio tapes, CDs, but also on printers, photocopiers, and since recently on hard drives hard drives . . . because all of the lost sales from copies made with/to these things.)
There is a difference between a backup copy, and being stopped from giving away your copy to whomever you see fit.
And I have big doubts about that copyright fee properly reaching the copyright owners. Most of it must be swallowed by the state.
Anyone who accuses a civil law system court of "judicial activism" or "interventionism" has no idea what he is talking about. Civil law courts (and this includes the ECJ) cannot "create" law even if they wanted - they can only interpret and apply existing law.
Quote from: Neil on July 04, 2012, 01:31:15 PM
That the scarcity is not a function of the limitation of the ability to copy, but a function of the codes used for DRM. Because GOG is selling old games that they've been allowed to sell without DRM, they can sell as much as they want.
GOG doesn't sell only old games. If the codes are not actually purchased by the distributors it's not really relevant to what GF was saying.
Quote from: Martinus on July 04, 2012, 01:54:50 PM
Anyone who accuses a civil law system court of "judicial activism" or "interventionism" has no idea what he is talking about. Civil law courts (and this includes the ECJ) cannot "create" law even if they wanted - they can only interpret and apply existing law.
That's a little circular.
Quote from: Tamas on July 04, 2012, 01:40:44 PM
And I have big doubts about that copyright fee properly reaching the copyright owners. Most of it must be swallowed by the state.
In Germany, the ZPÜ collects the levy from the manufacturers and then distributes it to rights holders, most notably GEMA (http://en.wikipedia.org/wiki/Gesellschaft_f%C3%BCr_musikalische_Auff%C3%BChrungs-_und_mechanische_Vervielf%C3%A4ltigungsrechte) (who wanted to charge YouTube €0.12 for every music video viewed in Germany) or VG Wort (print media representative body).
Prices in Germany are €12.50 for scanners, €13.65 for PCs, multifunctional laser copier/printer/scanners with 40+ pages per minute €87.50, MP3 players €2.56, external HDs >1 TB €9.00 etc.
International overview:
http://en.wikipedia.org/wiki/Private_copying_levy
The upside is that since you already paid for the stuff you can fill the HDs with torrented shit without feeling bad.
Quote from: The Brain on July 04, 2012, 02:30:10 PM
The upside is that since you already paid for the stuff you can fill the HDs with torrented shit without feeling bad.
If only.
The good thing is that Austria considers copyright violations mostly a civil, non-criminal issue (unless you earn money on it, like selling pirated stuff or running warez servers with ad or subscription revenue), and ISPs can't be forced (and assed) to hand over IP identifications or transfer protocols in non-criminal cases.
Quote from: Syt on July 04, 2012, 02:27:40 PM
Quote from: Tamas on July 04, 2012, 01:40:44 PM
And I have big doubts about that copyright fee properly reaching the copyright owners. Most of it must be swallowed by the state.
In Germany, the ZPÜ collects the levy from the manufacturers and then distributes it to rights holders, most notably GEMA (http://en.wikipedia.org/wiki/Gesellschaft_f%C3%BCr_musikalische_Auff%C3%BChrungs-_und_mechanische_Vervielf%C3%A4ltigungsrechte) (who wanted to charge YouTube €0.12 for every music video viewed in Germany) or VG Wort (print media representative body).
Prices in Germany are €12.50 for scanners, €13.65 for PCs, multifunctional laser copier/printer/scanners with 40+ pages per minute €87.50, MP3 players €2.56, external HDs >1 TB €9.00 etc.
International overview:
http://en.wikipedia.org/wiki/Private_copying_levy
Do GEMA and VG Wort disburse the proceeds only to German content producers, or worldwide?
Presumably they distrbute to the authors and composers (nwho are not necessarily the artists or distributors of the songs). They have pretty strong leverage in Germany. E.g. if you were to hold a public/commercial dance party you have to pay GEMA fees for the music played there. If you're not happy with that, YOU have to prove that the music you play is authored/composed by non-GEMA members (and this has been confirmed by legislation).
Sony and Universal in Germany have thrown hissy fits over GEMA blocking quite a few of their artists' videos on YouTube because GEMA thinks they don't get their fair share.
Btw, this circles back to my previous rant about the EU supposedly having a common, free market of goods and services (since 1992) which has yet to arrive for digital media.
It is painfully obvious that the EU is an enormous disaster. I don't use the word failure since the purpose of the EU is murky at best.
Quote from: Admiral Yi on July 04, 2012, 02:07:52 PM
Quote from: Martinus on July 04, 2012, 01:54:50 PM
Anyone who accuses a civil law system court of "judicial activism" or "interventionism" has no idea what he is talking about. Civil law courts (and this includes the ECJ) cannot "create" law even if they wanted - they can only interpret and apply existing law.
That's a little circular.
I'm not sure that the problem with his argument is that it's circular. The problem is that it doesn't seem to acknowledge what is meant by "judicial activism". Essentially, a complaint about judicial activism is a complaint that the courts have exceeded their authority by interpreting a law is such a, uhm, shall we say, creative, way that a ruling can no longer be viewed as merely being interpretive. The distinction between civil law and common law systems doesn't seem relevant to this.
Fair enough.
Quote from: Martinus on July 04, 2012, 01:54:50 PM
Anyone who accuses a civil law system court of "judicial activism" or "interventionism" uses the screen name 'Martinus' has no idea what he is talking about.
Quote from: Razgovory on July 04, 2012, 02:01:49 PM
Quote from: Neil on July 04, 2012, 01:31:15 PM
That the scarcity is not a function of the limitation of the ability to copy, but a function of the codes used for DRM. Because GOG is selling old games that they've been allowed to sell without DRM, they can sell as much as they want.
GOG doesn't sell only old games. If the codes are not actually purchased by the distributors it's not really relevant to what GF was saying.
They don't sell anything new that's AAA.
The digital distributors are assigned batches of codekeys, which can be depleted. In order to get more, they have to get them from the publisher, which can take days or weeks.
Quote from: Syt on July 04, 2012, 02:47:56 PM
Presumably they distrbute to the authors and composers (nwho are not necessarily the artists or distributors of the songs). They have pretty strong leverage in Germany. E.g. if you were to hold a public/commercial dance party you have to pay GEMA fees for the music played there. If you're not happy with that, YOU have to prove that the music you play is authored/composed by non-GEMA members (and this has been confirmed by legislation).
Sony and Universal in Germany have thrown hissy fits over GEMA blocking quite a few of their artists' videos on YouTube because GEMA thinks they don't get their fair share.
I think that they're going to try bringing this in in Canada.
Quote from: Neil on July 04, 2012, 04:04:14 PM
Quote from: Razgovory on July 04, 2012, 02:01:49 PM
Quote from: Neil on July 04, 2012, 01:31:15 PM
That the scarcity is not a function of the limitation of the ability to copy, but a function of the codes used for DRM. Because GOG is selling old games that they've been allowed to sell without DRM, they can sell as much as they want.
GOG doesn't sell only old games. If the codes are not actually purchased by the distributors it's not really relevant to what GF was saying.
They don't sell anything new that's AAA.
The digital distributors are assigned batches of codekeys, which can be depleted. In order to get more, they have to get them from the publisher, which can take days or weeks.
I believe they sold The Witcher 2 on release, though they are owned by the same company.
They also sold the PC version of Alan Wake very shortly after, if not right at, release.
Not sure if those fall into your new or AAA categories.
I've changed my mind about the ruling. It's an unwarranted restriction on the freedom to contract.
You know, the idea that you're actually buying software rather than renting it does appeal to me though. Surely the next step is to invalidate EULAs.
Quote from: Neil on July 04, 2012, 06:26:37 PM
You know, the idea that you're actually buying software rather than renting it does appeal to me though. Surely the next step is to invalidate EULAs.
Well, the 2 ideas would seem to go hand-in-hand. If you buy a product from a business, generally speaking you don't also have to buy a license to use if from that business.
Quote from: Razgovory on July 03, 2012, 06:51:46 PM
Possibly, but how many variables are there for one game? There are like 25 different digits which can use either a number or a letter. I'm not good at math and don't know how to figure how many possible codes there are for one game. Hundreds of Trillions? And even if they did, they could just get rid of the requirement.
Assuming that a 25-character key avoids easily-confused characters like "1" and "I" or "0" and "O," with an English alphabet, That's still theoretically 32^25 keycodes. Keep in mind, though, that those aren't the only practical limitations. A key's also going to avoid things like repeating blocks, directly linear combinations of characters, any key that composes of a single character repeated...
Part of the key is sometimes also a code for identifying the game itself, further limiting the combinations.
As Neil pointed out it's a very specific subset of all the possible combinations. Otherwise it would be too easy to randomly generate a bunch of keys.
They should just go back to code wheels....I'd always lose them anyway...so it would work against resale.
Quote from: Syt on July 04, 2012, 10:17:42 PM
Part of the key is sometimes also a code for identifying the game itself, further limiting the combinations.
Sure, but that's actually less secure- pseudorandom keys can't be reverse-engineered, but hashes can.
Quote from: DontSayBanana on July 04, 2012, 11:01:27 PM
Quote from: Syt on July 04, 2012, 10:17:42 PM
Part of the key is sometimes also a code for identifying the game itself, further limiting the combinations.
Sure, but that's actually less secure- pseudorandom keys can't be reverse-engineered, but hashes can.
Yeah, but the game can't locally verify a random key, and if you're going to use an online connection, than keycodes aren't the best solution anyways.
Quote from: sbr on July 04, 2012, 04:18:44 PM
Quote from: Neil on July 04, 2012, 04:04:14 PM
Quote from: Razgovory on July 04, 2012, 02:01:49 PM
Quote from: Neil on July 04, 2012, 01:31:15 PM
That the scarcity is not a function of the limitation of the ability to copy, but a function of the codes used for DRM. Because GOG is selling old games that they've been allowed to sell without DRM, they can sell as much as they want.
GOG doesn't sell only old games. If the codes are not actually purchased by the distributors it's not really relevant to what GF was saying.
They don't sell anything new that's AAA.
The digital distributors are assigned batches of codekeys, which can be depleted. In order to get more, they have to get them from the publisher, which can take days or weeks.
I believe they sold The Witcher 2 on release, though they are owned by the same company.
They also sold the PC version of Alan Wake very shortly after, if not right at, release.
Not sure if those fall into your new or AAA categories.
worth noting that the pirated release of Witcher 2, was, by no surprise, the GOG edition.
Quote from: Tamas on July 05, 2012, 01:31:52 AM
Quote from: sbr on July 04, 2012, 04:18:44 PM
Quote from: Neil on July 04, 2012, 04:04:14 PM
Quote from: Razgovory on July 04, 2012, 02:01:49 PM
Quote from: Neil on July 04, 2012, 01:31:15 PM
That the scarcity is not a function of the limitation of the ability to copy, but a function of the codes used for DRM. Because GOG is selling old games that they've been allowed to sell without DRM, they can sell as much as they want.
GOG doesn't sell only old games. If the codes are not actually purchased by the distributors it's not really relevant to what GF was saying.
They don't sell anything new that's AAA.
The digital distributors are assigned batches of codekeys, which can be depleted. In order to get more, they have to get them from the publisher, which can take days or weeks.
I believe they sold The Witcher 2 on release, though they are owned by the same company.
They also sold the PC version of Alan Wake very shortly after, if not right at, release.
Not sure if those fall into your new or AAA categories.
worth noting that the pirated release of Witcher 2, was, by no surprise, the GOG edition.
First why is that worth noting?
Second, coming from an expert....
it's worth noting to support my point that copy-protection does work against piracy to a degree. Not much, but it does have an effect.
Neat-o torpedo
The most pirated PC games of 2011 (the year Witcher 2 came out) were (according to Torrent Freak) (http://torrentfreak.com/top-10-most-pirated-games-of-2011-111230/):
1 Crysis 2 (3,920,000) (Mar. 2011)
2 Call of Duty: Modern Warfare 3 (3,650,000) (Nov. 2011)
3 Battlefield 3 (3,510,000) (Oct. 2011)
4 FIFA 12 (3,390,000) (Sept. 2011)
5 Portal 2 (3,240,000) (Apr. 2011)
Portal 2 and COD:MW3 were Steamworks. BF3 was Origin. Crysis had some silly DRM I don't remember. FIFA is EA so I am sure it did as well.
Quote from: sbr on July 05, 2012, 02:16:25 AM
Neat-o torpedo
The most pirated PC games of 2011 (the year Witcher 2 came out) were (according to Torrent Freak) (http://torrentfreak.com/top-10-most-pirated-games-of-2011-111230/):
1 Crysis 2 (3,920,000) (Mar. 2011)
2 Call of Duty: Modern Warfare 3 (3,650,000) (Nov. 2011)
3 Battlefield 3 (3,510,000) (Oct. 2011)
4 FIFA 12 (3,390,000) (Sept. 2011)
5 Portal 2 (3,240,000) (Apr. 2011)
Portal 2 and COD:MW3 were Steamworks. BF3 was Origin. Crysis had some silly DRM I don't remember. FIFA is EA so I am sure it did as well.
Ugh. I hope we aren't going to have this argument again--we spent most of a thread arguing about it a while back--but there's good reason to think that there's a correlation between how popular a game is overall, and how often it's pirated.
Quote from: sbr on July 05, 2012, 02:16:25 AM
Neat-o torpedo
The most pirated PC games of 2011 (the year Witcher 2 came out) were (according to Torrent Freak) (http://torrentfreak.com/top-10-most-pirated-games-of-2011-111230/):
1 Crysis 2 (3,920,000) (Mar. 2011)
2 Call of Duty: Modern Warfare 3 (3,650,000) (Nov. 2011)
3 Battlefield 3 (3,510,000) (Oct. 2011)
4 FIFA 12 (3,390,000) (Sept. 2011)
5 Portal 2 (3,240,000) (Apr. 2011)
Portal 2 and COD:MW3 were Steamworks. BF3 was Origin. Crysis had some silly DRM I don't remember. FIFA is EA so I am sure it did as well.
BF3 used Origin for copy-protection? I wouldn't know, since I've mostly exited the AAA market on PC.
Quote from: Admiral Yi on July 04, 2012, 05:59:22 PM
I've changed my mind about the ruling. It's an unwarranted restriction on the freedom to contract.
Maybe. maybe not.
I'm not familiar with ECJ procedure and some of the jargon is foreign as well.
But what it looks like is that a couple very specific legal questions were referred to and ruled on by the Court, and all those legal questions involved how to intepret specific directives incorporating copyright protections.
Thus, it could be the case that all the Court's ruling says is that purchasers and sellers of purportedly non-transferable licenses (and their brokers) can't be found in violation of the copyright enforcement directives, but the seller could in theory still be found to have breached the terms of the contractual license agreement.
Not sure about this though - someone more familiar with European law could clarify.
Quote from: The Minsky Moment on July 05, 2012, 02:21:28 PM
Not sure about this though - someone more familiar with European law could clarify.
I only know of one languishite claiming to be a lawyer one the continent...
All jokes aside, I would assume Martinus would know the answer to this.
Quote from: The Minsky Moment on July 05, 2012, 02:47:41 PM
All jokes aside, I would assume Martinus would know the answer to this.
I will grant that he claims to know the answer to this.
Quote from: The Minsky Moment on July 05, 2012, 02:47:41 PM
All jokes aside, I would assume Martinus would know the answer to this.
:huh:
Quote from: The Minsky Moment on July 05, 2012, 02:21:28 PM
I'm not familiar with ECJ procedure and some of the jargon is foreign as well.
But what it looks like is that a couple very specific legal questions were referred to and ruled on by the Court, and all those legal questions involved how to intepret specific directives incorporating copyright protections.
Thus, it could be the case that all the Court's ruling says is that purchasers and sellers of purportedly non-transferable licenses (and their brokers) can't be found in violation of the copyright enforcement directives, but the seller could in theory still be found to have breached the terms of the contractual license agreement.
I'm not sure about too much, but it was a reference of specific questions from a German Court. It does refer to a 2009 EU regulation on computer programs. From what I understand Oracle's main argument was that they were selling licenses online. The Court's clarified that if authorised and unlimited, then there's effectively no difference between buying online and buying a physical program in a shop (Oracle argued there was). Even if the license forbids resale the copyright holder's power over distribution is exhausted by the authorised sale or transfer of the program or license. They can't oppose your re-sale. Their power over a genuine purchase or authorised download is as extinguished as with a physical product. It's still subject to other contractual provisions and to copyright - so you have to extinguish your access to a license to resell it. And there are other exceptions mentioned in the directive.
That at least is my understanding. This is from the ICLR:
http://cases.iclr.co.uk/Subscr/search.aspx?path=WLR%20Dailies/WLRD%202011/wlrd2012-192
QuoteTHE COURT (Grand Chamber) ruled as follows. Article 4(2) of Parliament and Council Directive 2009/24/EC of 23 April 2009 on the legal protection of computer programs meant that the right of distribution of a copy of a computer program was exhausted if the copyright holder who had authorised, even free of charge, the downloading of that copy from the Internet onto a data carrier had also conferred, in return for payment of a fee intended to enable him to obtain a remuneration corresponding to the economic value of the copy of the work of which he was the proprietor, a right to use that copy for an unlimited period. In the event of the resale of a user licence entailing the resale of a copy of a computer program downloaded from the copyright holder's website, that licence having originally been granted by that rightholder to the first acquirer for an unlimited period in return for payment of a fee intended to enable the rightholder to obtain a remuneration corresponding to the economic value of that copy of his work, the second acquirer of the licence, as well as any subsequent acquirer of it, would be able to rely on the exhaustion of the distribution right under article 4(2), and hence be regarded as lawful acquirers of a copy of a computer program within the meaning of article 5(1) and benefit from the right of reproduction provided for in that provision.
Obviously the ruling and Advocate General's opinion aren't online yet but they'll probably explain more.
The Directive and press release are here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:111:0016:0022:EN:PDF
http://curia.europa.eu/jcms/upload/docs/application/pdf/2012-07/cp120094en.pdf
Quote from: Sheilbh on July 05, 2012, 07:47:43 PM
I'm not sure about too much, but it was a reference of specific questions from a German Court. It does refer to a 2009 EU regulation on computer programs. From what I understand Oracle's main argument was that they were selling licenses online. The Court's clarified that if authorised and unlimited, then there's effectively no difference between buying online and buying a physical program in a shop (Oracle argued there was). Even if the license forbids resale the copyright holder's power over distribution is exhausted by the authorised sale or transfer of the program or license. They can't oppose your re-sale. Their power over a genuine purchase or authorised download is as extinguished as with a physical product. It's still subject to other contractual provisions and to copyright - so you have to extinguish your access to a license to resell it. And there are other exceptions mentioned in the directive.
If you're correct, then the ruling seems quite reasonable.
Quote from: Neil on July 04, 2012, 11:50:59 PM
Yeah, but the game can't locally verify a random key, and if you're going to use an online connection, than keycodes aren't the best solution anyways.
And this is another problem with keys, since quite a few are just stored in the registry and checked against a hard-coded whitelist. :lol:
ECJ is saying that concluding a licensing agreement constitutes a first sale within the meaning of the specific directive and a transfer of ownership to a copy of the program.
Quote49 As the Advocate General observes in point 59 of his Opinion, if the term 'sale' within the meaning of Article 4(2) of Directive 2009/24 were not given a broad interpretation as encompassing all forms of product marketing characterised by the grant of a right to use a copy of a computer program, for an unlimited period, in return for payment of a fee designed to enable the copyright holder to obtain a remuneration corresponding to the economic value of the copy of the work of which he is the proprietor, the effectiveness of that provision would be undermined, since suppliers would merely have to call the contract a 'licence' rather than a 'sale' in order to circumvent the rule of exhaustion and divest it of all scope.
The judgement and opinion of AG are available here:
http://curia.europa.eu/juris/documents.jsf?num=C-128/11
Quote from: Brezel on July 06, 2012, 02:15:36 AM
ECJ is saying that concluding a licensing agreement constitutes a first sale within the meaning of the specific directive and a transfer of ownership to a copy of the program.
Quote49 As the Advocate General observes in point 59 of his Opinion, if the term 'sale' within the meaning of Article 4(2) of Directive 2009/24 were not given a broad interpretation as encompassing all forms of product marketing characterised by the grant of a right to use a copy of a computer program, for an unlimited period, in return for payment of a fee designed to enable the copyright holder to obtain a remuneration corresponding to the economic value of the copy of the work of which he is the proprietor, the effectiveness of that provision would be undermined, since suppliers would merely have to call the contract a 'licence' rather than a 'sale' in order to circumvent the rule of exhaustion and divest it of all scope.
Directive 2009/24 is a directive that requires that Member States "shall protect computer programs, by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works" That is, it is a copyright directive that enforces a treaty on the protection of IP.
Thus, the way I would read this as an Amerikanski lawyer is something like this:
An IP holder's rights in a copyrighted work are deemed extinguished upon first sale, and for the purposes of copyright law, "first sale" is defined to include software transferred via licensing, as well as outright sale. The rationale is that doing otherwise would permit copyright holders to gut the first sale doctrine.
All fine and good. But it sill leaves open the question whether the software manufacturer could still sue the purported transferor for violation of the terms of the licensing agreement as a matter of breach of contract, even if there is no copyright violation.
Quote from: The Minsky Moment on July 06, 2012, 01:14:44 PM
All fine and good. But it sill leaves open the question whether the software manufacturer could still sue the purported transferor for violation of the terms of the licensing agreement as a matter of breach of contract, even if there is no copyright violation.
I'm not familiar with IP law nor the reach of copyright or its exhaustion under national laws. The directive and the judgment seem to point to different directions. The directive in its article 8 explicitly mentions law of contract as not affected by its provisions. Art. 5 of the directive, stating exceptions in favor of the lawful acquirer begins with the words "in absence of specific contractual obligations".
The ECJ at para 84 holds the contractual term concerning non-transferability included in licence agreement as not applicable due to exhaustion of copyright. Allowing redistribution regardless of contract provisions and simultaneously holding the first right holder liable for breach of that contract would be somewhat contradictory.
ECJ only answers the questions concerning the interpretation of EU law that are submitted to it by national courts. The question of liability of Usedsoft did not arise in the case as far as I can tell. So the possible unclarity is as expected.
It is noteworthy that the judgment was delivered by the Grand Chamber and that the judgment differed from advocate general's opinion. Quote from the AG:
Quote99. I do not consider that, as the legislation currently stands, the exhaustion rule, which is inherently linked to the right of distribution, can be extended to the right of reproduction. I am aware that confining the rule in this way only to copies materially incorporated in a data carrier after being downloaded from the internet will severely limit its scope in practice but, although justifiable on grounds of the need to preserve the effectiveness of the exhaustion rule and to give precedence to the free movement of goods and services, the converse solution, which would have the effect of widening the scope of the exhaustion rule beyond that envisaged by the EU legislature, (46) cannot, in my view, be adopted without jeopardising the principle of legal certainty, which requires the rules of EU law to be foreseeable.
Quote from: The Minsky Moment on July 06, 2012, 01:14:44 PM
Quote from: Brezel on July 06, 2012, 02:15:36 AM
ECJ is saying that concluding a licensing agreement constitutes a first sale within the meaning of the specific directive and a transfer of ownership to a copy of the program.
Quote49 As the Advocate General observes in point 59 of his Opinion, if the term 'sale' within the meaning of Article 4(2) of Directive 2009/24 were not given a broad interpretation as encompassing all forms of product marketing characterised by the grant of a right to use a copy of a computer program, for an unlimited period, in return for payment of a fee designed to enable the copyright holder to obtain a remuneration corresponding to the economic value of the copy of the work of which he is the proprietor, the effectiveness of that provision would be undermined, since suppliers would merely have to call the contract a 'licence' rather than a 'sale' in order to circumvent the rule of exhaustion and divest it of all scope.
Directive 2009/24 is a directive that requires that Member States "shall protect computer programs, by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works" That is, it is a copyright directive that enforces a treaty on the protection of IP.
Thus, the way I would read this as an Amerikanski lawyer is something like this:
An IP holder's rights in a copyrighted work are deemed extinguished upon first sale, and for the purposes of copyright law, "first sale" is defined to include software transferred via licensing, as well as outright sale. The rationale is that doing otherwise would permit copyright holders to gut the first sale doctrine.
All fine and good. But it sill leaves open the question whether the software manufacturer could still sue the purported transferor for violation of the terms of the licensing agreement as a matter of breach of contract, even if there is no copyright violation.
I would need to brush on my IP law, but I think the doctrine of EU exhaustion (which is an extension of the free movement of goods principle) means that any contractual provision contrary to it is unenforceable/illegal, as it violates the EU treaty (which is the directly applicable law in the EU).
An attempt of suing the end user who is a consumer would then not only be unsuccessful, but could very well be considered and fined as consumer rights violation, if widespread; in B2B relationships, I could see there being a case built for a dominant position abuse, too, if the suing software provider was deemed to have either an individual or a collective dominant position.
Quote from: Grey Fox on July 04, 2012, 08:04:12 AM
Grumbler?
Don't ask me> I have no idea how this works. Sounds like you know much more than me.