Thanks to this videogame related ruling, I'm moving to Europe.

I’m moving to Europe.

I’ve always wanted to, not least of all because it’s old, beautiful, and full of real castles.

But there are other perks as well. For instance: mandatory paid vacation. That’s why Europeans have so much time to go to things like this, and this. Did you know we’re one of the only developed countries that doesn’t require employers to give their employees paid time off. In most of Europe, the average amount of annual paid leave is closer to 20 days.

There’s also the recent flurry of goodwill Nintendo’s been on that continent. The 3DS XL that company announced not to long ago will be available in Europe almost a month earlier then in North America (along with the increasingly anticipated New Super Mario Bros. 2). Plus, those of us on this side of the Atlantic still have no hope of getting out hands on Pandora’s Tower. Xenoblade may have already arrived (months late), and Last Story will be here soon enough (though still very, very late), but the journey across the ocean for Pandora’s Tower has yet to be announced.

And then there’s this. Today, the European Union’s Court of Justice advised in the case UsedSoft GmbH v Oracle International Corp. that owners are free to resell their software as long as they 1.) do so only after having made the first copy of it unusable, and 2.) they sell it in its entirety and do not divide up the license.

As the court stated in a press release today,

“Under that directive, 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. In the present case, Oracle claims that the principle of exhaustion laid down by the directive does not apply to user licences for computer programs downloaded from the internet.”

My favorite part of it, if you hadn’t already guessed, is the “monopoly of exploitation” that companies lose when they sell a copy of their software, including digitally. In other words, the European court has declared that what we think of as the “first-sale” doctrine applies to all products, even non-physical ones.

The German company that benefited from this decision, usedSoft, basically acts as a middle-man for second-hand licenses, buying them from individuals or companies who no longer need them, and selling them to those who do. It does what retailers like GameStop and Amazon do for used video games. Which means that the consequences for video game DRM, DLC, and consumer rights in general won’t be far off.

It’s almost hard to fathom, especially as an American, that there might actually be a legal landscape where the rights of those who buy video games will expand even without a formal gamer bill of rights. It’s not clear that gamers will ever get a document like that, and the way things are going in Europe, it certainly seems at least like gamers in that part of the world won’t need one. For those of us in the States though things aren’t looking nearly as good.

If anything, the mindset in the United States is to let license agreements remain under a dark cloud of legal gloom. And even if it remains a legal impossibility, companies are still desperate to use whatever technological means they have to abolish used games all together. Publishers like EA and Ubisoft, as well as some developers, have convinced themselves that the current paradigm of digital ownership is actually more fair than the one that exists for physical products. This is why the sale of used products, something that was never controversial in the past, is now seen by many as benign form of theft. Used game sales “cost” publishers money, and allow games to trade hands without the creator ever getting even “one cent.”

Imagine if your the creator of the Milky Way chocolate bar. I buy that chocolate bar, eat half of it, and then give my friend the other half for a token to ride the subway home. Am I really a thief? When did the second hand market become looked upon as the black market?

Then there’s Europe, where the prevailing legal framework allows digital copies to be traded and sold just like physical ones. Software companies argue that this will cut into their hard earned profit, and stifle innovation as we know it. Same old, same old. Because God forbid I can’t buy a second-hand copy of Microsoft Office from someone on Ebay. Who would want to live in that world?

Tomorrow is the 4th of July. The day we celebrate our independence from the old country, and honor the sacrifices made on behalf of a new experiment in democracy and civil liberties.  But if you want to see a similar experiment happening in digital rights you’ll have to look backwards across the Atlantic because it’s nowhere to be found here.


  1. Fiohnel

    With this ruling, the only way for game developers and publishers to retain their profit level is by preventing the reselling of their “product” by moving into “services”, which means the death of single player, offline game. Not sure I’d call it victory for gamers.

  2. Fiohnel

    I imagine platform like Steam can use such opportunity to enable resell but with a catch; they’ll get a cut for every transaction, which is split between Steam and original developer/publisher. Even 1USD per transaction would bring tons of profit.

  3. FailboatSkipper

    @ethangach @nitemaremodenet … are you really?

  4. RedAce9000

    this should come over to America and Canada, as i have plenty of digital games that i don’t play anymore

  5. reidmccarter

    @TrueAxiom How can you tweet that article on today of all days? Treason. Unpatriotic traitor. I bet you vote for Obama.

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