Steam, GoG and Others Must Allow Reselling of Downloaded Games in EU

The European Union's Court of Justice has ruled that consumers within the EU can legally resell previously purchased and downloaded digital games and software, despite any restrictions in End-User License Agreements (EULAs). This landmark decision stems from a legal dispute between software reseller UsedSoft and Oracle.

Copyright Exhaustion and Resale Rights

The ruling hinges on the principle of copyright exhaustion. Once a copyright holder sells a copy and grants unlimited usage rights, the distribution right is considered exhausted, permitting resale. This applies to games and software obtained through platforms such as Steam, GOG, and Epic Games. The original purchaser gains the right to transfer the license, enabling a new owner to download the game. The court clarified that, "...a license agreement granting the customer the right to use that copy for an unlimited period...the rightholder sells the copy to the customer and thus exhausts his exclusive distribution right...Therefore, even if the license agreement prohibits a further transfer, the rightholder can no longer oppose the resale of that copy."

The practical implications involve the original buyer transferring the game's license key, relinquishing access upon resale. However, the lack of a formalized resale market raises questions regarding the transfer process, particularly concerning account registration.

Limitations on Resale

While the ruling grants resale rights, it includes key limitations. The seller cannot retain access to the game after the sale. The court emphasized that the original purchaser "must make the copy downloaded onto his own computer unusable at the time of resale," preventing continued use, which would violate copyright.

Reproduction Rights

The court addressed reproduction rights, stating that while distribution rights are exhausted, reproduction rights remain. However, these are limited to copies necessary for legitimate use. The ruling explicitly permits the new buyer to download the game, considering this a necessary reproduction for intended use.

Backup Copies and Resale

Importantly, the ruling excludes backup copies from resale. The court, citing the case of Aleksandrs Ranks & Jurijs Vasilevics v. Microsoft Corp., confirmed that lawful acquirers cannot resell backup copies of software.

In summary, the EU court's decision significantly alters the landscape of digital game and software resale within the EU, granting consumers the right to resell but also establishing clear limitations regarding continued access and backup copies. The absence of a structured resale marketplace, however, leaves room for further development and clarification.