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Oracle Software The Courts Your Rights Online

Used Software Can Be Sold, Says EU Court of Justice 385

Posted by timothy
from the over-and-over-and-over dept.
Sique writes "An author of software cannot oppose the resale of his 'used' licenses allowing the use of his programs downloaded from the internet. The exclusive right of distribution of a copy of a computer program covered by such a license is exhausted on its first sale. This was decided [Tuesday] (PDF) by the Court of Justice of the European Union in a case of Used Soft GmbH v. Oracle International Corp.."
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Used Software Can Be Sold, Says EU Court of Justice

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  • by RoverDaddy (869116) on Tuesday July 03, 2012 @08:49AM (#40526313) Homepage
    This has enormous implications. I just wonder how many threats to 'take their ball and go home' will ensue, followed by threads of 'I'm getting my dad (the US government)'.
    • by cpu6502 (1960974) on Tuesday July 03, 2012 @08:56AM (#40526371)

      What can the U.S. government do against the whole of the E.U.? I suppose this decision means I can sell my Microsoft Office 2010 license on ebay. Yay! I never use the software anyway. (I wonder if I can sell ebooks too? Or maybe just the whole amazon account; ebooks and all.)

      • by shione (666388) on Tuesday July 03, 2012 @09:32AM (#40526773) Journal

        1. buy laptop with a forced copy of windows
        2. extract windows key
        3. rplace windows with Linux
        4. sell windows on ebay
        5. ????
        6. profit!

        Interestingly, if you could get more than $3 from selling windows which you most probably could, it would beat begging the oem to refund you the windows price.

        • by uigrad_2000 (398500) on Tuesday July 03, 2012 @10:32AM (#40527551) Homepage Journal

          The problem is with point #4. Ebay will not allow sales of software that violate the Terms of Use from the author. They are a private company, and have the right to do so.

          But, if you live in the EU, you could sell the copy of Windows to your neighbor, or to some chick you met in a bar, and it would be totally legal. I know that's not quite as exciting, but ... uh... chick in a bar!

          • by DM9290 (797337)

            The problem is with point #4. Ebay will not allow sales of software that violate the Terms of Use from the author. They are a private company, and have the right to do so.

            But, if you live in the EU, you could sell the copy of Windows to your neighbor, or to some chick you met in a bar, and it would be totally legal. I know that's not quite as exciting, but ... uh... chick in a bar!

            Ebay is not a private company. It is privately owned, but by many separate shareholders who were enticed by the promise that the board of directors would attempt to maximize profits. Consequently the board of directors has a fiduciary duty to every shareholder to doing everything reasonable to maximize profits.

            Since Ebay has no commercial interest in clinging to a policy which is not longer rational. Then if the sale of used software is clearly legal, and there is no public relations purpose for continuing

    • by Xest (935314) on Tuesday July 03, 2012 @09:04AM (#40526471)

      I wonder if this has any implications for game developers?

      I've always though the tactic of enabling multiplayer (and nowadays even some single player) via a code that's become prevalent in just about every console game over the last year or two really stank of a complete breach of the precedent of the right to sell your content on second hand.

      Similarly, I wonder if it has any implications for Valve, with whom you're forced to activate some games with to prevent resale?

      I know a lot of people here will defend Valve etc., but really, computer software is about the only product I know of whereby you're artificially prevented from selling on in the same working manner you can consume it in second hand. Toasters, clothes, cars, music CDs, DVDs, books, plants, furniture, washing machines - just what other products are there other than games that have these artificially restrictions in place to prevent resale? Should they really be allowed to get away with it by simply claiming they're anti-piracy measures when we all know the pirates nearly always get their copies earlier precisely because they don't contain these measures?

      • I've always though the tactic of enabling multiplayer (and nowadays even some single player) via a code that's become prevalent in just about every console game over the last year or two really stank of a complete breach of the precedent of the right to sell your content on second hand.

        Assuming you mean online multiplayer, the developer/publisher provides the service that allows the multiplayer to happen. It's underhanded, true, but also understandable, as (usage of) the service is licensed separately to the game itself.

        • I've always though the tactic of enabling multiplayer (and nowadays even some single player) via a code that's become prevalent in just about every console game over the last year or two really stank of a complete breach of the precedent of the right to sell your content on second hand.

          Assuming you mean online multiplayer, the developer/publisher provides the service that allows the multiplayer to happen. It's underhanded, true, but also understandable, as (usage of) the service is licensed separately to the game itself.

          Except that owners of the game are locked to the developer/publisher servers, making the ability to connect to them compulsory to using the product to its fullest.

          If these publishers gave game purchasers the option to set up and connect to private servers, you might have a legit argument there.

          • Oh, wait - Valve. Yea, they do that.

            For some reason I keep thinking you're talking console games...
        • by Xest (935314) on Tuesday July 03, 2012 @09:36AM (#40526831)

          "Assuming you mean online multiplayer, the developer/publisher provides the service that allows the multiplayer to happen. It's underhanded, true, but also understandable, as (usage of) the service is licensed separately to the game itself."

          Does it? XBox Live costs me £40 a year and multiplayer on every single game I've played bar Battlefield 3 is peer to peer. I don't disagree with you if we're talking about something like WoW where there is significant server overhead, I don't even disagree with something like BF3, though ironically with BF3 not only have they introduced a subscription service, they've actually stopped providing 99.99% of their servers and instead charge people to run their own. I guess I can't fault them as it works, but certainly on consoles there's negligible expenditure on multiplayer costs - the bulk of it is paid for by Microsoft by way of the Live infrastructure rather than the games companies themselves.

          It's frustrating too, because me and my girlfriend both enjoyed Need for Speed: Hot Pursuit, we both have an XBox, and we both have a Live subscription, yet because of the activation code she can't play multiplayer whilst I'm playing a different game on my console without paying yet another £10 despite the fact we already paid for the game first hand.

          Effectively we've reached a point now where you have to actually buy a copy of many games for every person in the house that wants to play multiplayer, rather than where you'd just need a copy per household previously. We're quick to criticise the music industry because they've been trying to make us rebuy content we've already paid for for years now, but we seem to have sleepwalked into allowing games companies to get away with exactly this.

        • by Bert64 (520050)

          Advertised features of the game (multiplayer) require those servers to function, and in many cases the servers are not an ongoing subscription therefore the service is part of the original software...

          What should happen is...

          1, games are given away free but the online service is subscription based (eg think eve online)... a single player mode, if one exists, is effectively a demo.

          2, the game is sold but also comes with the server software, so people can run their own servers.

          I utterly detest the idea of buyi

      • by L4t3r4lu5 (1216702) on Tuesday July 03, 2012 @09:18AM (#40526611)
        Valve is in a great position regarding this. You can already gift games to other players; They just need to enable gifting of currently owned games and Bob's your mother's brother. Hell, it may occur that Steam gets more subscribers as games are gifted to people who aren't currently subscribed. Licenses held in escrow until someone creates an account to redeem them? PayPal does that with money already.
        • by SpeZek (970136)
          Except that would utterly destroy single-player game sales. Whole communities would pop-up that would simply buy one copy of the game and share it with 500 people, each person taking a "turn" at blasting through the campaign before gifting it to the next.
        • by Sir_Sri (199544)

          Hell, it may occur that Steam gets more subscribers

          What exactly is a steam subscriber? Steam sells games on its service. The number of people who use the service is secondary to the number to games they sell. they don't make money from people having steam accounts, they make money from selling games. And, somewhat importantly, most developers have no desire to see their games sold used, that's why we all fled gamestop brick and mortar stores to steam in the first place.

          as games are gifted to people who aren't currently subscribed. Licenses held

    • by AmiMoJo (196126) <mojo @ w orld3.net> on Tuesday July 03, 2012 @09:15AM (#40526591) Homepage

      Game developers already have a solution. Make the game require internet access with a single use code. You can sell the game but it is worthless without a new code.

      Similarly you can be the next version of RandomApp Pro 2013 will require online activation tied to your email address and with no way to change or update it.

      • by Picass0 (147474)

        "...cannot oppose the resale of his 'used' licenses..."

        I see the basis for a lawsuit contending single use code is an obstruction to the consumer's right to resale.

      • by shione (666388)

        Playstation Network already has something similar to this. You buya game new and it comes with downloadable content (DLC). If you sell the disc the buyer can play the game but he doesnt get the DLC because it is tied to your account.

        One way around this and the RandomApp Pro problem and selling steam games is to make a throwaway steam/psn/email account and give that away with whatever it is you're selling.

      • by drinkypoo (153816)

        Except that is specifically an author of software opposing the resale of his 'used' licenses allowing the use of his programs...

      • by gbjbaanb (229885)

        from TFA:

        Where the copyright holder makes available to his customer a copy â" tangible or intangible â" and at the same time concludes, in return form payment of a fee, a licence agreement granting the customer the right to use that copy for an unlimited period, that rightholder sells the copy to the customer and thus exhausts his exclusive distribution right. Such a transaction involves a transfer of the right of ownership of the copy.

        so you can resell your game, and if that does not work then you can sue them for preventing the transaction. Remember the court said the initial sale "exhausts his exclusive distribution right", so they cannot prevent it all from being resold - a single-user code tagged on can be transferred along with the game code (or sold separately of course) and will continue to work, or is in violation of the law.

        You could think of the single-user code as the product being transferred when sold rather than th

    • I'm amazed, but also delighted. It shows that Big Business can still lose a case against Common Sense.

  • Once Win8 is here and Win7 is withdrawn from sale... there'll be a good supply of pre-loved Win7 licenses!
    • Re:Just in time... (Score:5, Interesting)

      by Miamicanes (730264) on Tuesday July 03, 2012 @09:04AM (#40526477)

      Upgrades are a special case. When you upgrade "most" products, you don't get another license... the old one is extinguished the moment you activate the new one.

      Also, did the court rule that consumers have the *right* to buy & sell used licenses, or merely that it doesn't constitute infringement? Big difference -- in case 1, the licensor must cooperate. In case 2, they can't sue you, but can use DRM to render the used license worthless.

      • Besides, almost all of those Win7 licenses will be OEM. Non-transferable.
        • Re:Just in time... (Score:4, Interesting)

          by silas_moeckel (234313) <silas@nOspAM.dsminc-corp.com> on Tuesday July 03, 2012 @09:25AM (#40526673) Homepage

          It depends on how it was worded. There are many rights that can not be given up or overwritten by contract. If that were the case non transferable would not be legal and MS would be compelled to allow it. I doubt this ruling went that far.

        • This isn't true for Germany (and the rest of the EU AFAIK).
          Courts over here have ruled years ago that taking OEM software licenses out of a bundle and selling them separately is legal.
          Microsoft was not amused, but have (kind of) learnt to live with it.

        • If I'm understanding this ruling correctly, it sounds like any "non-transferrable" restriction on an otherwise permanent licence might just have become unenforceable, whether the software maker likes it or not.

          That said, the ruling is about software bought separately, either as a physical package or downloaded. It doesn't mention the issue of bundled software explicitly, so we'll have to try and interpret the ruling as it might apply in the OEM case. The ruling itself seems to be written very broadly (and d

      • Re:Just in time... (Score:5, Interesting)

        by Sique (173459) on Tuesday July 03, 2012 @09:20AM (#40526629) Homepage

        The core ruling can be found at the end of Page 1:

        Where the copyright holder makes available to his customer a copy – tangible or intangible
        – and at the same time concludes, in return form payment of a fee, a licence agreement
        granting the customer the right to use that copy for an unlimited period, that rightholder
        sells the copy to the customer and thus exhausts his exclusive distribution right. Such a
        transaction involves a transfer of the right of ownership of the copy.

        So the Court ruled that the buyer of any non-expiring software license (consumer or not) has the ownership of the copy and is untrestricted in his right to sell the copy.

        • Re:Just in time... (Score:4, Insightful)

          by jimicus (737525) on Tuesday July 03, 2012 @09:53AM (#40527027)

          So the Court ruled that the buyer of any non-expiring software license (consumer or not) has the ownership of the copy and is untrestricted in his right to sell the copy.

          Seems fairly obvious the direction this will take then. Expiry periods built into software licenses.

      • by FudRucker (866063)
        RE: "they can't sue you, but can use DRM to render the used license worthless"

        i am sure somebody will make a key gen & spoof tool and gently break the "call home to the mothership" feature and/or third party windows update so microsoft never even sees the second-hand licensed winders OSs & office
        • by Bert64 (520050)

          Why buy a used copy if you have to crack it?
          Might as well just get a pre cracked pirate copy...

    • You'd likely have to buy a full Win 8 though. Otherwise Microsoft has nothing stopping them from saying "Well, this is an addition to Win 7. You no longer own Win 7, so this addition license is no longer valid. You can just buy a new Win 7 license for this to work with."

  • Diablo 3 refunds? (Score:4, Interesting)

    by Rooked_One (591287) on Tuesday July 03, 2012 @08:50AM (#40526317) Journal
    I hope so... I know it won't happen in the US.... Which actually says a lot. As Americans we are used to getting what we paid for. If something sucks, we're entitled to our money back.
    • by Shavano (2541114)
      Just try getting your money back for software after you've opened the package, installed it and concluded it's not with the money.
    • by Colonel Korn (1258968) on Tuesday July 03, 2012 @08:57AM (#40526389)

      I hope so... I know it won't happen in the US.... Which actually says a lot. As Americans we are used to getting what we paid for. If something sucks, we're entitled to our money back.

      No refunds in the US, but you can still sell it. I've made a separate Bliz account for each of their recent products and sold the account when I'm done with it. For their two most recent games, "done" came two days after purchase.

      • I've made a separate Bliz account for each of their recent products and sold the account when I'm done with it.

        Clever :)

    • by neokushan (932374)

      I don't see why this would affect refunds of licenses? It's seems to deal more with the transfer of licenses to another party. What I'd like to know is how this affects digital distribution like app stores, steam, xbox live and so on. That is, IF it affects them. I have a huge collection of games on steam and XBLA that I don't play much these days.. I'd love to be able to ebay them.

    • by cpu6502 (1960974)

      >>> If something sucks, we're entitled to our money back.

      Exactly.
      This applies to DVDs and CDs too. I refuse to buy either if I can't later return them for refund or store credit, when the content sucks.

         

      • by stewbacca (1033764) on Tuesday July 03, 2012 @09:29AM (#40526721)

        Why? You can secretly love the movie, but pretend it "sucks" (what defines sucks, btw?) and take it back. Free rental isn't a good business model for anyone.

        You can't watch a movie, then go back to the ticket counter for a refund because you didn't like it. You CAN, however, if the sound cut out half way through, or the audience unduly interfered with your ability to watch the movie. You can't get your money back for a football game that sucked. Entertainment follows completely different rules when it comes to consume r ights. Was the game played in its entirety, without undue distraction or delays? Then what's the problem? Oh, your team didn't win (you didn't like the book, you hated the movie, you don't like the singers voice)? That's a shame. You still got the product that was promised as part of the contract between you and the content provider when you purchased the "ticket".

        • Why? You can secretly love the movie, but pretend it "sucks" (what defines sucks, btw?) and take it back. Free rental isn't a good business model for anyone.

          You can't watch a movie, then go back to the ticket counter for a refund because you didn't like it. You CAN, however, if the sound cut out half way through, or the audience unduly interfered with your ability to watch the movie. You can't get your money back for a football game that sucked. Entertainment follows completely different rules when it comes to consume r ights. Was the game played in its entirety, without undue distraction or delays? Then what's the problem? Oh, your team didn't win (you didn't like the book, you hated the movie, you don't like the singers voice)? That's a shame. You still got the product that was promised as part of the contract between you and the content provider when you purchased the "ticket".

          Strawman: One-time event tickets != durable goods.

        • by cpu6502 (1960974)

          >>>Why? You can secretly love the movie, but pretend it "sucks" (what defines sucks, btw?) and take it back

          Why not?
          I can do it with candy. "If this product is not satisfactory, return the unused portion for a refund." - If I can return a sucky piece of chocolate, I see no reason why I can't return the sucky Transformers 2 DVD for store credit. You mean to tell me that Hershey and Mars Candy has more integrity & better customer service than MGM or Sony DVD? Wow.

        • by cpu6502 (1960974)

          Oh and I forgot to mention that most stores have a 3-strike policy. No more than 3 returns per year. That policy would prevent the kind of "I liked the movie but I'm returning it anyway" abuse you describe.

      • by niado (1650369)

        >>> If something sucks, we're entitled to our money back.

        Exactly. This applies to DVDs and CDs too. I refuse to buy either if I can't later return them for refund or store credit, when the content sucks.

        I disagree. If something is defective, the consumer should have the right to exchange it for a non-defective product. If the product functions properly (and the seller was not using deceptive trade practices), but the purchaser just doesn't really like it, it would be unethical to return the product in many cases. Many vendors allow the return of products for any reason or no reason, as a customer courtesy, and many jurisdictions have laws governing this, but claiming that this behavior is a "right" is a l

  • Well of Course (Score:5, Insightful)

    by jasper160 (2642717) on Tuesday July 03, 2012 @08:51AM (#40526319)
    Why not? I can re-sell my car, books, records, and cassettes. Software should be no different.
    • Re:Well of Course (Score:5, Insightful)

      by w.hamra1987 (1193987) on Tuesday July 03, 2012 @08:58AM (#40526397) Homepage

      well... because software is not a physical object like cars, books and records... you can not "own" it in the sense of ownership you do to physical object... but wait... all the stupid *intellectual property* laws enforced in the last few decades... claimed IP can be owned like physical property... hmm... someone is struggling with basic logic in the capitalism and mass theft department...

      • It's typical whiney super-corporations wanting it both ways. They don't care if they have hypocritical reasoning as long as they get what they want.

      • by AmiMoJo (196126)

        Imagine if books came wrapped in an EULA that said you own a license to the story and cannot resell it. That would never be stood for, unless it is an eBook.

      • by gl4ss (559668)

        the sw is installed on a machine. how about a car company saying you can't resell the engines chip sw?

        • by i.r.id10t (595143)

          If you buy a replacement chip and remove the OEM one, what exactly stops you from selling it?

      • by dkleinsc (563838)

        Not really, their logic goes like this: (1) If it's mine, it's mine. (2) If it's yours, it's really mine. (3) If I want it, there's some excuse as to why it's really mine.

        In other words, major corporations have exactly the same set of morals as your average 2-year-old.

    • by Shavano (2541114)
      It should be even more resellable. Your software hasn't been degraded by your having used it.
    • Because software doesnt "wear out"
  • All the stores without exception say you can not get your money back if you have opened the shink wrap.

    I wonder if this ruling affect that.

  • by Anonymous Coward on Tuesday July 03, 2012 @08:53AM (#40526343)

    I won't even ask why these enlightened decisions always come from the EU.
    Where the fuck is the US ?
    So the enlightenment is back in Europe while the dark ages are in full throttle in the US.
    Interesting century we're living in.

    • Not really.

      The EU's currency is a mess and is breaking up. Many EU countries are implementing currency controls. Economically the EU is dead.

      The EU gets some things right but a lot of things wrong. Like the new law put in effect that you have to display an annoying message if you use cookies. If you don't want cookies, disable them in your browser. An option that has existed since cookies were invented.
      • And then lots of websites won't work. I'm happy with cookies required for site function. I'm happy with third-party cookies that allow things like Verified by Visa to work. I'm not happy with third-party tracking cookies and would like the option to not be tracked. As the free market refuses to offer this, I'm happy that the EU has stepped in.

    • by crazyjj (2598719) *

      You mean the U.S., whose Congress is now a wholly-owned subsidiary of corporate America?

  • by shione (666388) on Tuesday July 03, 2012 @09:04AM (#40526469) Journal

    Bad news for autodesk who are vehemently opposed to used copies of autocad being sold on places like fleabay. Between versions of autocad which autodesk releases new versions annually there isn't a massive difference in features but if you want it it will cost you one price only - full rrp or close thereof. That is because as soon as the new version comes out the old stock is recalled so the shops cannot discount the older version and second hand sellers are quickly shut down.

    Autodesk will also only upgrade from versions that are not that old, so people cannot 'catch up' if they left it a while .

  • by Overzeetop (214511) on Tuesday July 03, 2012 @09:05AM (#40526489) Journal

    They have fought tooth and nail to keep their "software as a revocable license" model so that they can continue to extort huge sums of money from the industries they service. I expect them to throw their resources at legislative change to "fix" this European problem.

    • by rbrausse (1319883) on Tuesday July 03, 2012 @09:23AM (#40526649)

      I expect them to throw their resources at legislative change to "fix" this European problem.

      you're dead-on.

      Oracle's press release [oracle.com] says:

      We trust that this is not the end of the legal development, and that the EU Member States as well as the European Commission will be doing all they can to protect innovation and investment in Europe’s technology industry and to prevent business models which threaten both.

      or - in short - WE HATE YOUR LAWS. CHANGE THEM.

  • ...it will be interesting to see how software companies respond. I guarantee you that the ability to resell software will need to be accounted for by companies needing to make a profit in some way.

    I get the feeling that this might eventually create more companies going with limited licensing - i.e. updates for one year from the date of purchase, things like that. Anti-virus companies will be all set, since they already do that. Games like World of Warcraft? They charge you monthly anyway, so they're not

  • Deos this mean EULAs are now illegal in the EU?

A bug in the code is worth two in the documentation.

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