
European Court: Used software licenses may be resold. - kleiba
http://translate.google.com/translate?sl=de&tl=en&js=n&prev=_t&hl=en&ie=UTF-8&layout=2&eotf=1&u=http%3A%2F%2Fwww.spiegel.de%2Fnetzwelt%2Fnetzpolitik%2Feugh-zu-oracle-vs-usedsoft-gebrauchte-software-darf-verkauft-werden-a-842260.html&act=url
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kitsune_
Holy... mother... of... god...

I know, this isn't the most insightful comment, but I can't see this NOT
having a huge impact on the software industry.

I don't know why you focus on STEAM, this could touch iPhone / iPad / Android
apps as well.

~~~
mduerksen
The posted article lacks a lot of details. According to a more comprehensive
one[1] (german as well):

\- The court has ruled that reselling doesn't violate copyright, but nothing
prevents a software vendor from forbidding the reselling in it's license. The
court didn't force vendors/service providers to permit reselling.

\- The court has not demanded that vendors enable the reselling technically.

\- The court has limited its ruling to computer programs, and excluded media
like ebooks, video, music and the like.

So in effect, this will change: Software vendors will have to change their
licenses to prevent reselling.

[1]: [http://www.heise.de/newsticker/meldung/EuGH-Klares-Ja-zum-
We...](http://www.heise.de/newsticker/meldung/EuGH-Klares-Ja-zum-
Weiterverkauf-gebrauchter-Software-1631306.html)

~~~
Silhouette
I read the actual ruling, or at least the official English translation of
it[1].

While I'm not a lawyer, it seems abundantly clear that the court considered
taking money for a permanent licence to be a sale. That brings first sale
rules into the picture, for example, "[t]he first sale in the Community of the
original of a work or copies thereof by the rightholder or with his consent
exhausts the right to control resale of that object in the Community."

Oracle's licence agreement did clearly say that the licence was non-
transferrable, and they lost.

[1]
[http://curia.europa.eu/juris/document/document.jsf?text=&...](http://curia.europa.eu/juris/document/document.jsf?text=&docid=124564&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=5223284)

------
gpvos
Direct link to original article (in German):
[http://www.spiegel.de/netzwelt/netzpolitik/eugh-zu-oracle-
vs...](http://www.spiegel.de/netzwelt/netzpolitik/eugh-zu-oracle-vs-usedsoft-
gebrauchte-software-darf-verkauft-werden-a-842260.html)

Link to English press release of European Court of Justice:
[http://curia.europa.eu/jcms/upload/docs/application/pdf/2012...](http://curia.europa.eu/jcms/upload/docs/application/pdf/2012-07/cp120094en.pdf)

~~~
hef19898
And fun thing is that Der Spiegel was actually faster than HN, usually they
are at least a couple of days behind (for the HN stories Soeigel is covering).

~~~
derda
I think the regal battle started on german soil since the company, that oracle
was trying keep from selling the used licenses, was a german one. The case got
quite some media attention over here, even the radio-news mentioned it.

------
sageikosa
Excellent justification for software to become subscription based (you are
granted perpetual license to the software "as is" when installed, and for a
nominal fee per month you get updates).

If I buy a bundle (Windows and Office installed OEM) can I split the products
and resell without new hardware? I ask because if the license as written was
to only be distributed with new hardware, then reseller channel pricing may go
out the window.

Also, if I can ignore the license terms, what does that do to GPL?

~~~
papercrane
> Also, if I can ignore the license terms, what does that do to GPL?

I don't think it means anything for the GPL. If you really wanted to I suppose
you could transfer your license to someone else, but since the GPL lets you
relicense under the GPL anyways there really isn't any change.

~~~
sageikosa
Not that I think there is any practical impact, but could I resell just the
part of a GPL distribution that did not include the source code? If so, what
license does that resold portion now fall under? Doubtless, getting a hold of
the original GPL distribution should be relatively trivial, but suppose the
code was tweaked and not resold? Now that may seem unlikely, but suppose a
vendor added and tweaked some stuff, sold it under GPL to a "straw" reseller,
who then proceeded to strip the license terms and resell without the source
code?

I am not a big GPL/Open Source guy, but since Copyleft is derived from
Copyright (from which software license arise) an attack on one is an attack on
all...

My real issue is that while the EU court is going about invalidating licenses
(regardless of their intent, and whether or not their intent is "good")
unforeseen consequences may ensue.

Disclaimer: I am no legal expert.

~~~
rmc
_could I resell just the part of a GPL distribution that did not include the
source code?_

No. GPL software is copyrighted. Law (ie not contracts, actual acts and laws)
says you cannot distribute a copyrighted work unless you have permission of
the copyright holder. In the case of the GPL, the copyright holder only gives
you permission to distribute if you include the work under the GPL.

 _what license does that resold portion now fall under?_

The GPL.

 _since Copyleft is derived from Copyright_

In reality, copyleft _is_ copyright. "Copyleft" is just a term to appear
different. It is, legally, copyright, but giving people more than is commonly
given (e.g. the permission to make derived works etc.)

A lot of confusion is from the mixing of copyright law and contract law. EULA-
type "licences" are contract law, and you must agree to them, like a contract.
The GPL, despite "licence" in it's name, is not a EULA-type licence, but
merely a statement of what rights the copyright holder gives you. You do not
have to click "I agree" to be bound by the GPL.

~~~
pbhjpbhj
> _The GPL, despite "licence" in it's name, is not a EULA-type licence_ //

Sorta. A EULA is also a license from a copyright [license] holder.

Resale of an item does not obviate copyright law. The creator (or successor in
title or licensee) still holds the IP rights - they have only exhausted their
right to control the particular copy _instance_ that was sold. Thus a license
like the GPL is still a valid part of the license of use for the copyright
work.

So for the GPL it means the same as it does for other lawful licenses applied
by copyright holders, very little. You can resell a GPLed work but you can't
modify it and strip the GPL from it or unilaterally alter the creator's
license.

In the same way the lawful terms in a EULA will still apply. You can't sell a
work on to a third party and buy it back in order to somehow nullify license
terms.

IANA(IP)L

------
michaelfeathers
The European vision of IP and the American vision of IP continue to diverge. I
think that is healthy.

~~~
johansch
If nothing else it is proper payback for American software companies charging
non-Americans 1.5x-2x more for the same product as they charge Americans.

------
crazygringo
What does this mean about copies of Windows shipped with PC's for example?
That don't even come with reinstallation discs?

The license prohibits you from transferring those (the manufacturers pay much
cheaper than retail)... but this ruling would indicate that you still can.

~~~
guard-of-terra
In most jurisdictions license (or any contract) is not the end of the world.
If license conflicts with a law, guess what wins.

------
mootothemax
I remember Autodesk being one company who hated beyond belief people selling
second-hand copies of their software, removing lots of eBay auctions via DMCA
notices.

It's been a few years since I last looked at this, but here's a story from
2009:

[http://www.computerworlduk.com/news/it-
business/16847/autode...](http://www.computerworlduk.com/news/it-
business/16847/autodesk-ebay-seller-suit-could-impact-sales-of-secondhand-
software/)

------
aaronbasssett
What about 1 time use codes many console games come with now? I can see the
multiplayer codes being safe as they can claim you are purchasing access to
the servers. But what about codes which unlock extra characters or other parts
of the game, such as the Catwoman code in Batman Arkham City?

------
gpvos
This is going to be interesting for software distributed through systems like
Valve's Steam, which is tied to a user account. If they want to continue
selling their games in Europe, they will have to create a way to transfer your
license to someone else.

~~~
matt4711
From the german article "Sehe der mit dem Verkauf geschlossene Lizenzvertrag
ein dauerhaftes Nutzungsrecht vor, sei dies nicht an den Erstkäufer gebunden -
das Eigentum der Kopie werde übertragen, von der Firma an den Käufer"

meaning "Permanent usage rights granted at the point of sale are not exclusive
to original and may be transferred to a second buyer..."

I'm guessing soon we will only be able to "buy" non permanent usage rights for
stuff we buy on steam/random other online distribution platforms.

~~~
jannorthoff
Like a 99 year license?

Or maybe demos can be canned because people can just try and then sell it
again if they don't like the game (as there's no using effect which would
reduce the software's value)?

~~~
matt4711
when it comes to these things lawyers are unfortunately very creative :(

~~~
bryanlarsen
Lawyers are creative but judges are also usually pretty smart. They're quite
capable of ruling that "if it looks like a sale and it acts like a sale, it's
a sale" even if it's structured as a license.

------
Fargren
Then, are software vendor required to offer a way too resell the software? Or
are they just not allowed to persecute those who come up with a way to do it?

------
maybird
Does this ruling indirectly legitimizes DRM removal tools?

I mean, without them, how can you resell a license?

Then again, the EU has anti-circumvention rules similar to those in the DMCA.

~~~
rmc
_the EU has anti-circumvention rules similar to those in the DMCA._

Oh? Didn't know that. Got a source/details/explaination/more information?

~~~
maybird
[http://en.wikipedia.org/wiki/Anti-
circumvention#European_Uni...](http://en.wikipedia.org/wiki/Anti-
circumvention#European_Union)

------
wickedchicken
I enjoyed this translated chunk: "In plain English: If you sold a piece of
software, it can not simultaneously use more themselves."

------
morsch
This case involves business software (Autodesk, Microsoft, SAP, etc.). But I
wonder if it applies to my Steam games library, as well. That would be crazy.
In the extreme case, it would reduce the number of digital sales from #(people
who want to play the game) to #(people who want to play the game
simultaneously).

~~~
ajuc
> In the extreme case, it would reduce the number of digital sales from
> #(people who want to play the game) to #(people who want to play the game
> simultaneously).

I doubt it. People who don't care about ethics already pirate game. People who
care won't cheat, they'll just sell games after they had finished them.

There are already game publishers, that sell games over internet (digital
copies) without DRM (gog.com for example). They are doing OK.

Also - in my country selling used software (including games) was always
considered fair use, regardless of EULAs. Just like with books.

~~~
morsch
That's why I said extreme case. Even if people sold games only after having
finished them, the consequences would be tremendous. So tremendous that it'll
never happen in a large scale: either downloadable games are somehow made
excempt via some sort of contract, or games will continue their shift towards
being SaaS, ie. you may resell Diablo 3, but you can't resell your Battle.net
account which is strictly required for playing the game.

The publishers in the US _hate_ the retail used games market with a fiery
passion (and it's not hard to understand why). And by and large I think very
few people make use of that, most people -- I'm extrapolating from myself here
-- are going to be too lazy to carry their games to GameStop for a couple of
bucks, and most buyers are going to be too wary of complications with a used
game to save a few bucks.

A digital download used games market would be way more convenient for both
sellers and buyers. It would also be much cheaper to both start up and operate
for a middleman, who could get by with much a lower cut than GameStop.

~~~
ajuc
There's one difference between pirating games, and buying used games. Pirated
games make perceived value of a game smaller - because you have alternate
source to get it for free, AND you get DRM in your game, making it less
convenient to use than pirated version.

Possibility to easily sell used game may make perceived value smaller (there's
cheaper legal way to get a copy). But it also may make the perceived value
bigger - if I can sell game after finishing it - I can get back some of the
costs, so I can justify buying more expansive game in the first place. I know
kid that routinely buy legal games, play them, and sell them at Polish
equivalent of e-bay. If it wasn't possible, he would buy much less games,
cause parents only give him so much money for games.

I don't know which way the perceived value will go, I'd guess it's self
balancing - the easier and more popular selling used games is, the more
perceived value of games will rise, making it possible to rise the prices, but
also making used games more popular.

Anyway IMHO the entire information market (games, apps, music, movies, ebooks,
etc) is going to be mostly honour-based in the future, at least for things
that can't be made into services. The only thing that makes people pay you for
your content is their feeling that they owe you something. Make them angry at
you, and that feeling disappears. One great way to make your clients angry at
you is to use law to enforce "unjust" conditions on them. And I don't see why
selling used licences is ethicaly different from selling used books, so it may
be hard for publishers to persuade people it's actually Evil.

------
yarone
What about used mp3's? Could I (legally) create a marketplace for half-priced
music: seller specifies what music they have, buyer buys, we "ensure"
destruction of sellers mp3, make it available to buyer?

~~~
waffle_ss
There's a start-up called [Murfie][1] that is doing this with physical CDs -
you mail in your discs and they do a digital rip of them, and allow you to
sell the digital copy on their website. They retain the physical discs in
their warehouse, which is kind of their "proof of ownership" for being able to
transmit and manage the digital copies.

[1]: <https://www.murfie.com/about_us>

------
twelvechairs
Does this mean it is also legal to lend licences? Someone should create a
service for 'this is my licence but when I'm not using it, my friends can'....

~~~
sageikosa
Do I need to license it on every machine I own? OK, how about if I know I am
the only user (to put aside the case where I fiscally own every machine my
kids use), and will only be using it on one machine at a time?

~~~
sycren
The licences from the Apple Mac App store works that way. You can install as
many apps as you like on any number of machines as long as you own them.

~~~
sageikosa
That's how I used to treat my copy of Turbo Pascal. I was the only one who
used it, either at home, or in the engineering firm I worked summers at.
Borland had a "treat it like a book" license, and I was the only one I knew
who'd use the software, so I didn't uninstall it when I left for the day and
re-install it in the morning.

------
ben0x539
Can't wait to sell my copy of Diablo 3 that got banned because I was playing
on Linux, or whatever happened in that other post.

------
ktizo
I thought I was just being really tired until I realised that the article had
gone through a translation mangler.

~~~
lloeki
Here this is Chrome being tired and acting up in a recursive manner so I can't
read TFA: <http://imgur.com/XZqAs>

