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. icon
    Chronno S. Trigger (profile), 29 Dec 2015 @ 8:49am

    Re: Curious how that would work

    You're not crazy, but a lot of your points have already been dealt with in the physical market.

    No, you wouldn't be able to sell outside of your chosen walled garden. It's a game on the Steam platform, why would you expect to sell it to a different platform? Same as selling a used Xbox One game. Why would you expect to sell it to a PS4 user? Different companies will setup their own markets (just like how there are plenty of other markets to sell Steam games), but it'll still be just Steam keys.

    The price is, yes, going to be linked to the price of the full game. Just like the current used market. Ain't no one going to buy a used game that cost more than a new one and the seller is always going to want as much money as possible.

    Steam credit is possible as a payment method. Game Stop only pays in store credit. But having a system for Pay Pal could easily be set up.

    CDs, DVDs, Blue-Rays (while all have DRM) are easy to copy. What's to prevent someone from buying a CD, copying it, and selling it? In all practical sense, nothing but the law. The same would apply with digital goods.

    You do make one vary good point, why would anyone buy a new copy if a "used" copy is available? The used copy is identical since the source files are the same. This is something we're going to have to figure out sooner or latter as more and more of the world becomes digital.

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