EU Court: Game Resellers Rejoice!

The European Union's Court of Justice has ruled that consumers within the EU can legally resell downloaded games and software, overturning restrictions imposed by End-User License Agreements (EULAs). This decision, stemming from a legal dispute between UsedSoft and Oracle, hinges on the principle of copyright exhaustion. This principle dictates that once a copyright holder sells a copy and grants unlimited usage rights, the distribution right is exhausted, enabling resale.

This ruling impacts major platforms like Steam, GOG, and Epic Games. The original purchaser retains the right to sell the game license, allowing a subsequent buyer to download it from the publisher's site. The court's decision explicitly states that even if a license agreement prohibits further transfer, the copyright holder cannot prevent resale once the initial sale has occurred. The process might involve the original owner providing a license code, relinquishing access upon resale. However, the lack of a structured resale market presents practical challenges. For instance, how registration transfers will function remains unclear, especially considering physical copies remain linked to the original owner's account.

Crucially, the seller cannot retain access to the game post-resale. The court clarified that the original purchaser must render their downloaded copy unusable upon resale to avoid copyright infringement.

While the exclusive distribution right is exhausted, the exclusive right of reproduction remains. However, the court permits reproduction necessary for lawful use. Subsequent buyers are considered lawful acquirers and can download the game to use it as intended. This right cannot be contractually restricted.

Importantly, the ruling excludes backup copies. The CJEU, in a separate case (Aleksandrs Ranks & Jurijs Vasilevics v. Microsoft Corp.), confirmed that reselling backup copies is prohibited.

In summary, the EU court's decision grants EU consumers the right to resell downloaded games and software, but with limitations: the seller forfeits access, and backup copies cannot be resold. The practical implementation of this ruling, especially the lack of a formal resale marketplace, remains a significant area for future development.