French Consumer Group Tries To Win Back Resale Rights For Digitally Distributed Games

from the here's-hoping dept

We talk a lot about first sale rights and resale rights at Techdirt, but of particular frustration to me is the strange capitulation to companies that sell digital copies of software. This isn't a strictly American problem, though here in the States there has been a near total abandonment of the consumer's rights when it comes to electronically delivered entertainment, be it eBooks, music, movies or games. The "you're licensing the game you paid for, not buying it" line is, on its face, ridiculous, amounting to a situation where Game "X" bought on a disc can be resold, but Game "X" bought and delivered on the internet cannot. Why a delivery method would alter the right to resale a bought product because a EULA says so is a concept that simply escapes me.

Across the pond, a French consumer group appears to agree, and it is trying to specifically attack Steam and Valve on this front.

The 64-year-old UFC-Que Choisir (the "federal union of consumers") argues that Valve must provide the capability for Steam users to resell their legally purchased digital games whenever they want. While noting that many online stores have similar resale restrictions, the group argues that the difference between being able to resell a physical game disc and not being able to resell a digitally purchased game is "incomprehensible... No court decision prohibits the resale on the second-hand market games bought online, and the European Court has even explicitly stated that it’s possible to resell software which, let’s remember, is an integral part of a video game."
As that ArsTechnica piece updates further down the post, there's some question as to exactly how true that statement is. There have been European court rulings that specifically drew a distinction between software in general and software that contained a creative component. But that seems like an awfully fine line to draw as the basis for removing a consumer's right to resell what they've bought.

An aside: Imagine applying this situation to other forms of intellectual property law, for instance. Trademark chiefly revolves around real or potential customer confusion. To that end, governments employing trademark law claim to be concerned about the public's ability to understand what they're buying. Yet, when it comes to resale rights, this interest in customer confusion evaporates. Anyone wishing to claim that the average purchaser of a Steam game wouldn't be surprised to find its the seller's opinion that they haven't actually bought the game in the traditional sense at all may do so, but I reserve the right to laugh them out of the conversation.

What makes UFC-Que Choisir's claim particularly interesting is that it coupled its demand for resale rights on digital games with an attack for Valve's claim of ownership over user-created content.
In addition to the resale complaint, UFC-Que Choisir takes Valve to task for claiming the right to reuse any user-created content on Steam "at will." This clause "denies... respect for the users'/creators' rights of intellectual property," the group says.
This would seem to ask Valve and game-sellers to pick a lane: either creative content is worthy of protection or it isn't. Using a creative component of content to deny consumers their resale rights while then happily making use of those same consumers' creative works at the same time isn't consistent.

Now, to be clear, most of the people reviewing this attempt believe it will fail. We can hope, however, that some court somewhere might take the side of the consumer and their rights regarding digital purchases.

Filed Under: digital distribution, first sale, france, resale rights, steam, video games
Companies: valve

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  1. identicon
    Anonymous Coward, 29 Dec 2015 @ 8:28am

    Curious how that would work

    So, let's say that the court says it's ok to resell digital copies. Sweet! That means I can sell the 50+ games I never play on Steam. But how would that work, exactly?

    I would assume that I can't sell my digital copy to anyone outside of my chosen walled garden (i.e. Steam, Origin, etc.).

    I would also assume that I can sell it for whatever price I wish, just like physical media.

    So, continuing to use Steam as an example, it would kind of like the marketplace they already have implemented. X number of copies can be bought from users at a certain price point. After a time that price would reflect the "true value" of the digital product, or the value that the most amount of people are willing to pay.

    Here is where I see the hiccup: Why would I ever, ever buy a digital product at the publisher's/Steam's price point when I can an buy an identical digital copy from a user for a lower price point?

    Also, the Steam/publisher price will determine where the user price is. If an item goes on sale, then the user price point will follow. Again, the only time someone would ever buy a "full price" digital copy from Steam is when there aren't any user copies available.

    And since the product is infinitely reproducible, the value of that product will never exceed the Steam price. Well, if Steam decided to stop selling a specific digital product that would increase the value on the user market since there are now a finite amount of extant digital copies, but that would seem counterproductive to, you know, making money.

    What about games outside of walled gardens? The DRM-free stuff (which I love, btw). How do you keep track of who owns what license without DRM? What would prevent me from selling an infinite amount of copies of GoG version of Witcher 3 for $1 without some sort of DRM in place proving that my copy was transferred to another party? You would have to have a version of DRM to prevent that exact scenario, which would defeat the purpose of selling a game sans DRM in the first place.

    And in what way will the seller be compensated for selling their digital copy? Steam credit? Will Valve mail them a check? Will there be a way to me to sell a game on Steam and then use that money to buy a game on Origin? If not, then the seller doesn't really have resale right, do they? They would only have the right to put whatever license key back in to the ecosystem they pulled it from. They couldn't sell a game to help pay the water bill.

    Tell me I'm crazy.

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