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

Copyright Exhaustion and Resale Rights

The court's ruling centers on the principle of exhaustion of distribution rights. Once a copyright holder sells a copy with unlimited usage rights, the distribution right is considered exhausted, permitting resale. This applies to games purchased on platforms like Steam, GoG, and Epic Games. The original purchaser can sell the license, allowing a new buyer to download the game. The ruling explicitly states that even if the EULA prohibits further transfer, the copyright holder cannot prevent the resale.

The practical application involves the original buyer transferring the game license code, losing access upon resale. However, the lack of a formal resale marketplace creates complexities, particularly regarding registration transfers. For instance, physical copies remain registered to the original owner's account.

(1) Copyright exhaustion limits a copyright holder's control over distribution. Once a copy is sold with consent, the right is exhausted, enabling resale without objection from the rights-owner. (via Lexology.com)

Limitations on Resale

While resale is permitted, the seller must render their copy unusable upon sale. Continuing to use the game after resale constitutes copyright infringement. The court clarifies that the original owner must delete the game from their device.

Reproduction Rights

The court distinguishes between distribution and reproduction rights. While distribution rights are exhausted upon sale, reproduction rights remain, but only for necessary uses by the lawful acquirer. This includes making copies required for intended program use, a right that cannot be contractually removed. The new buyer has the right to download the game.

Backup Copies

Importantly, the court specifies that backup copies cannot be resold. This aligns with a previous CJEU ruling in Aleksandrs Ranks & Jurijs Vasilevics v. Microsoft Corp.