/ Technology

Do you copy? Court OKs reselling ‘used’ downloads

When we buy DVDs or video games from shops, it’s our right to resell them once we’re done, no matter how much the creators might hate it. So why isn’t it the same for downloads? A court ruling suggests it might be…

If paying for a downloadable music track counts as a purchase, surely you should be able to sell that purchase on?

Well, companies would argue that you don’t actually own that track, you’ve only bought a licence for it.

As we found out when we talked about whether you have the right to bequeath your downloads – this is a licence granted only to you, which apparently isn’t transferable to anyone else, even after your death.

Essentially you’re just renting downloads, meaning they’re not yours to pass on, as commenter Robert Smith explained

‘You have not bought the item. You, by law, have merely rented it for your lifetime and when you become a memory the rights go back to the rightful owner. Exactly the same as a rented house, or car or anything else you RENT.’

UsedSoft – sell your old software

However, in a court case between a website called UsedSoft and the software company Oracle, the European Court of Justice in Luxembourg has ruled that you should be allowed to resell software licences.

UsedSoft’s site allowed users to resell their ‘used’ software licences, where the secondary purchaser would be able to buy the licence and download a new copy of the software, with the original owner’s copy being deactivated. Oracle wasn’t happy with this and sued UsedSoft in order to prevent used software from being sold.

However, the European Court of Justice this week ruled that used software can be resold, even if it wasn’t on a physical format, like a DVD. According to the Court, the copyright owner (eg. Oracle) exhausts their exclusive right of distribution when they first sell that software and so they cannot oppose its resale.

If that turns out to be the case, there are quite wide-reaching implications. You should be able to resell your ebooks, apps, downloadable games, music tracks and movies.

Keeping track of downloads

Of course, there’s a catch. You cannot simply go around selling multiple copies of your software – the Court made it clear that selling on your licence would require you erasing every copy of that software from your own computer(s).

How the copyright holder would know the copy was completely deleted from your computer isn’t clear. How would they find out? Scan your computer to check the file is no longer there? Privacy implications are starting to unravel…

There’s also the fact that, unlike a scuffed paperback or a scratched CD, downloads don’t deteriorate. This means that people can, in theory, resell the ‘original’ copy of the ebook or digital album. That is, unless the vowels start to gradually fall out of an ebook every time it’s resold, there’s no real concept of ‘used’ with downloads. So, why exactly would you buy the more expensive ‘new’ copy from the original company?

Is this an unacceptable judgment? Or just something companies will have to get to grips with?

Comments
Member

This may also affect the practice EA et al have been using of requiring owners second hand copies to pay additional money to activate online features.

I like that goods we buy are ours to resell. However, I would think a 99 year license for the goods will be enough to circumvent the ruling – but I guess the @which? legal monkies will have a better handle on that 😉

Member

Sorry – me again

It is quite entertaining that the services that have implemented strict DRM in their systems are also the ones likely to have to implement the ruling – after all a steam or origin PC game account has to be logged on and verified before you can play a game. So by that rational they would also have to implement the resale of licenses and then remove sold games from your account – therefore once you sell the license it is then deactivated.

Member

Not necessarily that they’ll be the ones who will have to implement it, but they’re the ones who will probably find it easiest to implement it. If the downloads are in the cloud and only in the cloud, then it’s very easy for them to remove them once they are sold on.

Member
Noel says:
6 July 2012

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

[Link removed, we don’t allow advertising. Thanks, mods.]

Member

Personally I’m glad to see this. The industry for everything from music, to books to games and films is going from ownership to licensing, but the prices are comparable. For example, I can download a book on Amazon from about the same price as the paperback, but have no right to resell or pass it on.

I think the industry wants it two ways – they tell us that we wouldn’t download a car just because the product isn’t physical, yet I am not allowed to resell downloads like I would a car because the product isn’t physical.

Member

I think this is the most short sighted attitude I’ve ever come across. One of Which’s biggest problems is their total inability to see how today’s rulings might affect tomorrow’s consumers.

Anyone remember the highly amusing ‘Home taping is killing music’ thing? Anyone want to try to claim that the variety of music today is in any way comparable with music back then? The argument here is the same thing. If I was a budding author and I realised that for every story I sold it was going to be passed on to an endless number of non-payers, I’d do some other job. So who loses? The world would never know, I could be the next big thing or just another also ran, but you can bet that the next big thing, whoever he or she might be, will like me, have moved on.

Member

Hello Jimmy, what Jon or myself have argued are our personal opinions on the matter – and I can certainly see the danger of going to far in this direction. However, passing on a used download would require that the previous version stops working.

And if you’re interested, Norman Lamb MP has written a guest Conversation on consumer rights related to downloads: https://conversation.which.co.uk/consumer-rights/norman-lamb-returning-faulty-games-downloads/ You may want to tell him what you think.

Member
Cameron says:
11 December 2012

I have sympathy with both sides of this argument.

I absolutely agree that multiple copying is wrong, it harms not just the big companies but authors and musicians, and it is theft. I grew up in a time when all music had to be bought in a shop and no one thought it their right to have any CD or cassette for free – unless they were a thief.

However, on the other side, I bought one of my favourite albums many years ago on a cassette tape, it got chewed up, so I bought the record, when CDs bacame popular I bought the CD. Surely I have bought the right to listen to it three times. Whilst I accept paying for the physical media of the CD (as well as the third licence) why would I have to pay a FOURTH time to listen to it on an MP3 if there are no material costs. A music distribution company may have to pay costs – staff, web site maintenance etc, but if someone copied an MP3 for me for ffree, surely it would be covered by the previous licences.