The question whether the doctrine of exhaustion could be applied to intangible copies has been the subject of intense debate. In the UsedSoft case, the CJEU decided that regardless of how the provisions on exhaustion are worded in Directive 2001/29/EC, the special provisions in the computer software directive 2009/24/EC permitted its application to intangible copies, and the contemporary realities of digital distribution required such application if the doctrine of exhaustion applied to digitally distributed computer software.
The German consumer watchdogs read the UsedSoft case to mean that the doctrine of exhaustion, by virtue of European law, had to be interpreted broadly to give it practical effect, and this could only mean that German courts now had to rethink their old stance.
Are German Courts Contradicting the CJEU?
So is the Regional Court of Berlin going against CJEU case law? Not quite.
The judges comments at the oral hearing held a few days before the verdict transpired do indicate that they do not consider the doctrine of exhaustion to be applicable to digitally distributed computer games at all. However, this is not a direct contradiction of the UsedSoft decision.
In fact, in UsedSoft, the CJEU mentions a possible discrepancy between the provisions on exhaustion in the general copyright directive and the computer software directive that may very well mean that exhaustion for intangible copies cannot apply to anything but computer software. And in a very recent case involving pirated copies of video games, the CJEU, holding that such games, because of their audiovisual components, were "not only computer software", considered them protected under the "general" copyright directive 2001/29/EC.
A second case dealing with the precise copyright status of video games (coming, incidentally, from Germany) is currently still before the European judges, so the case law on this issue must be considered in flux. But at least for the moment, it looks like digitally distributed video games are not subject to exhaustion in Europe.