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EU law: prohibiting used game sales is ILLEGAL - implications for the PS4

F

FoxSpirit

Junior Member
Thanks to EDGE's fogging it up statement in here: http://www.neogaf.com/forum/showthread.php?t=585731

Let's see about EU law., respectively the recent ruling.

By its judgment delivered today, the Court explains that the principle of exhaustion of the distribution right applies not only where the copyright holder markets copies of his software on a material medium (CD-ROM or DVD) but also where he distributes them by means of downloads from his website.
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. Therefore, even if the licence agreement prohibits a further transfer, the rightholder can no longer oppose the resale of
that copy.
Click to expand...
Microsoft will see a legal battle over the XBox-One policy for this and most likely try to use the "possible through selected retailers" defense. And loose, after dragging it out for years. They have the budget for it and can muddily argue.

Now, Sony has already stated the PS4 will NEVER have to go online to play games. No authentification required. Done.

Now, some people speculate, yes, that sounds cute, but pubs will simply implement their own DRM. Dear people, welcome to the EU.

I wanna see Ubisoft release a PS4 game, with a large sticker in front, "online activation required to play any part of the game", "no resale". And I wanna see how many days it takes them to get dragged into court, with a instant stop of sales for the offending product, and press all over Europe getting onto their behind for trying to actively go against the law and take rights from the customers.

Be my guest, publishers, do this :-D
 
D

Doikor

Member
FoxSpirit said:
Thanks to EDGE's fogging it up statement in here: http://www.neogaf.com/forum/showthread.php?t=585731

Let's see about EU law., respectively the recent ruling.


Microsoft will see a legal battle over the XBox-One policy for this and most likely try to use the "possible through selected retailers" defense. And loose, after dragging it out for years. They have the budget for it and can muddily argue.

Now, Sony has already stated the PS4 will NEVER have to go online to play games. No authentification required. Done.

Now, some people speculate, yes, that sounds cute, but pubs will simply implement their own DRM. Dear people, welcome to the EU.

I wanna see Ubisoft release a PS4 game, with a large sticker in front, "online activation required to play any part of the game", "no resale". And I wanna see how many days it takes them to get dragged into court, with a instant stop of sales for the offending product, and press all over Europe getting onto their behind for trying to actively go against the law and take rights from the customers.

Be my guest, publishers, do this :-D
Click to expand...

Steam is working just fine in EU and you cannot sell or gift your steam games. It's exactly the same system as xbox one but you only have to check to online once every 30 days if you go to offline mode (Have to be online to go to offline).
 
S

SneakyStephan

Banned
Good.

(don't confuse this for comparing xbox one to steam)
I hope EU courts will sort out steam too, I really want valve to (have to) add functionality to trade, gift or sell my games after playing them.

It's the only thing I'm missing right now.
 
P

PBY

Banned
Didn't we just do this?


Legal analysis isn't as easy as THIS IS THE LAW. I read the decision, there are issues with applicability, scope, etc.

I'm not sure it would even apply to the issues we've been discussing.
 
A

aramanKain

Member
Does this really matter in the end? There's so many other things going against the XB1 for Europe on top of this that it's guaranteed to be DOA there.
 
A

amstradcpc

Member
Easy, don´t buy games from that publishers. The problem is that the console drives that DRM thing and not the publisher.
 
R

RoboPlato

I'd be in the dick
Ever since they announced this stuff I've been really curious to see if there was going to be a legal issue in Europe. It'll be fascinating to see if that happens.
 
-Plasma Reus-

-Plasma Reus-

Service guarantees member status
I think this may be one of the reasons Sony never considered blocking used games a viable option. Its simply not worth it.
 
B

BrainZEROX

Member
FoxSpirit said:
Now, some people speculate, yes, that sounds cute, but pubs will simply implement their own DRM. Dear people, welcome to the EU.

I wanna see Ubisoft release a PS4 game, with a large sticker in front, "online activation required to play any part of the game", "no resale". And I wanna see how many days it takes them to get dragged into court, with a instant stop of sales for the offending product, and press all over Europe getting onto their behind for trying to actively go against the law and take rights from the customers.

Be my guest, publishers, do this :-D
Click to expand...
Actually, even if I'm conscious of my rights as a european gamer, I probably wouldn't move because my country doesn't have class action laws and I wouldn't go to court to fight for 60 euros alone... From a publisher perspective, only customer associations are to be affraid, individual customers wouldn't go to court I guess.
 
GameSeeker

GameSeeker

Member
Microsoft is going to get sued for their used game scheme in the EU and US and will likely lose in both jurisdictions.

Sony, by sticking with a PS3 type DRM scheme, will get to avoid the lawsuits. Smart, very smart.
 
Alx

Alx

Member
FoxSpirit said:
Microsoft will see a legal battle over the XBox-One policy for this and most likely try to use the "possible through selected retailers" defense. And loose, after dragging it out for years. They have the budget for it and can muddily argue.
Click to expand...

Interesting, but I think MS can find a way out thanks to how the law is written :

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.
Click to expand...

MS could argue that they don't grant a licence for an unlimited period, because their games require a server connection. That's actually one frequent complain : you can play the game, as long as the servers are up. So not for an unlimited time.
I suppose that MS lawyers already looked into the different laws, and that could explain the always online requirement, even when you own a physical disk.
 
D

Deleted member 1235

Unconfirmed Member
aramanKain said:
Does this really matter in the end? There's so many other things going against the XB1 for Europe on top of this that it's guaranteed to be DOA there.
Click to expand...

yes it may earn them a big fat fine...
 
L

LTWheels

Member
Please stop quoting EU law unless you understand how EU law works.

EU is very complicated and specialised area of law.

This is not a simple black/white issue. It is not statute based law. It is law that crosses jurisdictional boundaries. It works in a different way to what you expect in national law.
 
C

Chû Totoro

Member
Doikor said:
Steam is working just fine in EU and you cannot sell or gift your steam games. It's exactly the same system as xbox one but you only have to check to online once every 30 days if you go to offline mode (Have to be online to go to offline).
Click to expand...

Steam is digital only and they may sell licenses only. License of use, no ownership here.
I guess.
 
R

Raist

Banned
Doikor said:
Steam is working just fine in EU and you cannot sell or gift your steam games. It's exactly the same system as xbox one but you only have to check to online once every 30 days if you go to offline mode (Have to be online to go to offline).
Click to expand...

Well tehcnically you sohuld be able to resell your Steam titles. Of course the issue here is htat there's absolutely no system in place for that.

And Valve has been a bit sleazy about this:

For EU Subscribers:

You agree that this Agreement shall be deemed to have been made and executed in the Grand Duchy of Luxembourg and that it is subject to the laws of Luxembourg, excluding the law of conflicts and the Convention on Contracts for the International Sale of Goods (CISG). However, where the laws of Luxembourg provide a lower degree of consumer protection than the laws of your country of residence, the consumer protection laws of your country shall prevail. In any dispute arising under this Agreement, the prevailing party will be entitled to attorneys’ fees and expenses.
Click to expand...

So in essence, they based their EU stuff on Luxembourg (lolz) so if you're not happy about Steam not following EU laws you, the customer, can try and sue them.
 
TGO

TGO

Hype Train conductor. Works harder than it steams.
Why is the PS4 mentioned in the title when it the Xbone that's doing it?
 
E

El-Suave

Member
FoxSpirit said:
I wanna see Ubisoft release a PS4 game, with a large sticker in front, "online activation required to play any part of the game", "no resale".
Click to expand...

I agree with you points, but if you buy a Ubisoft Special Edition (in Germany at least) there is a sticker on the BD box that says "Bundled version - No individual resale!".
 
N

NewGame

Banned
Australia's already all angry about having a 24/7 camera on a product, we get even more angry about encroaching on the Australian Consumer Law.

Good luck Xbone!
 
D

Drazgul

Member
Doikor said:
Steam is working just fine in EU and you cannot sell or gift your steam games. It's exactly the same system as xbox one but you only have to check to online once every 30 days if you go to offline mode (Have to be online to go to offline).
Click to expand...

They should bitchslap Steam, too. Valve is no better than MS in this regard.
 
D

Doikor

Member
Alx said:
MS could argue that they don't grant a licence for an unlimited period, because their games require a server connection. That's actually one frequent complain : you can play the game, as long as the servers are up. So not for an unlimited time.
I suppose that MS lawyers already looked into the different laws, and that could explain the always online requirement, even when you own a physical disk.
Click to expand...

The EU law is that if it appears to the consumer that he is buying a product not a license/service he has to be able the resell it. It doesn't matter what the fine print says. If its on a letters half the size of the box then maybe. Having a box that you get from the shop for that $60 really isn't helping microsofts (and steams) case with this.

And yes what valve is doing with steam in pc space is the same as what microsoft wants to do. I think there are still some ongoing court cases about steam regarding this if i remember correctly.
 
F

Faddy

Banned
I think this is more interesting for Apple, Google and Steam. They can't block you from selling games but on closed platforms do they have to provide you with a way to be able to sell your copy?

I suppose Xbox One falls into this category as well.

I would love to see a 2nd hand digital market, it would be chaos for a lot of people but fun watching how prices fluctuate or if eventually a lot of older stuff is essentially available for free.
 
S

SneakyStephan

Banned
strata8 said:
You can buy Steam games in retail.
Click to expand...

Even if you couldn't, this needs fixing all the same.

This DD loophole crap has gone on long enough.

Valve may make good games and aren't a publicly traded company , but they have their own lawyers and do their own weaseling as well.
Being a whole lot lower on the evil scale does not make them exempt of the rules or of criticism.
 
S

strata8

Member
What does this mean for Google Play, Apple's App Store, or hell, all digital software? Most don't provide a form of resale.
 
W

Walshicus

Member
Therefore, even if the licence agreement prohibits a further transfer, the rightholder can no longer oppose the resale of that copy.
Click to expand...

Being prohibited from opposing is not the same as being required to facilitate.
 
S

sangreal

Member
Metalmurphy said:
No you don't. Also steam is a digital distribution platform. Period.
Click to expand...

So is Xbox One. Yes, you can buy discs at retail, but they just contain a key for the digital version and a copy of the installation files -- which is identical to steam. The discs don't serve any purpose other than reducing download time
 
Q

quetz67

Banned
I just hope xbone policies will wake the sleeping lions and european courts mandate that Steam, Battlenet games etc. must have an option to transfer the licence to a new account.

They should allow a small transfer fee, so people don't transfer $1 Appstore games when they are through with them.
 
D

Doikor

Member
strata8 said:
What does this mean for Google Play, Apple's App Store, or hell, all digital software? Most don't provide a form of resale.
Click to expand...

This pretty much. With EU law you have to be able to resell or trade away all your games/software even if they are digital download only. I don't think any digital retailer allows this at the moment.
 
Alx

Alx

Member
Doikor said:
The EU law is that if it appears to the consumer that he is buying a product not a license/service he has to be able the resell it.
Click to expand...

I very much doubt that. Either the sold game is officially considered an unlimited licence, or not. But it doesn't depend on the perception of the consumer.
It would "appear to the consumer" that a "free game" on PSN+ is a free game, but it's not, because you can only play it as long as you're a subscriber and the servers are up.

The fine prints are void if the law is applicable and they oppose it, but they still can define the extend of the license, and thus not be concerned about the law itself.

strata8 said:
What does this mean for Google Play, Apple's App Store, or hell, all digital software? Most don't provide a form of resale.
Click to expand...

Most of them don't respect the law, but at the moment no measure has been taken yet. Maybe it will be overlooked, maybe they'll have to pay a fine and still keep going,... But all of it can take a lot of time.
 
R

Replicant

Member
Yes Euro, let's drag MS and these other fuckers. Australia will have a field day with this too once ACCC hears about this.
 
P

PBY

Banned
Okay... theres so much misinformation in this thread.

Everyone should read the whole decision before wading into this.
 
C

CyclopsRock

Member
There's a difference between their ToS's saying you can't sell it being invalid, and them actually having to facilitate a sale. You may well be "allowed" to sell a game you've downloaded on PSN and no longer want - but how are you going to do it?
 
D

danielcw

Member
There is a difference between being allowed to resell a game, and being able to force Microsoft to support you selling a game.

If you can't force Microsoft to remove the lock between your account and the game, then you can't really sell.


EDIT: beaten by a few seconds :)
 
Alx

Alx

Member
peterb0y said:
Okay... theres so much misinformation in this thread.

Everyone should read the whole decision before wading into this.
Click to expand...

I agree we're discussing based on a tiny snippet of a huge legal mess structure anyway... but even so things don't seem as clear as they could. I can't imagine how it would be for a real lawyer.
 
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