The Court of Justice of the European Union has made a crucial judgement determining that publishers cannot oppose the resale of their previously bought and played downloadable games.

The ruling even goes as far as to say the judgement stands even if the original buyer has signed a End User License Agreement, and will have major implications for distribution services like Valve's Steam and EA's Origin.

The judgement, explained below in more detail, came about after a legal battle in the German courts between software reseller UsedSoft and developer Oracle.

"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," said the official document.

"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."

"Both Origin and Steam would have to facilitate some kind of method whereby a consumer could revoke the activation of that key and then pass a brand new key onto a third party."

He believed it would change the nature of sales and discounts in the digital gaming market.

"The classic technique of deep discount, short time limited discounts, all of that will be slightly skewed now, because you don't want to have a deep discounted game that can then be sold on elsewhere," he explained.

"The secondary market then cuts in and then what will happen is the same sort of thing as you've seen in the high street whereby a supermarket chain puts a fantastic discount on a product for consumers and all the other high street retailers trot down to the supermarket to buy them to stop them."

Jas Purewal, a lawyer who specialises in games industry issues, took to his blog to highlight some of the questions raised by the ruling. For instance, what about mobile apps where it just isn't possible to transfer games to a new user, or is a game that sees updated content added.

, , ,

He also saw problems with making sure that users weren't selling on software, while at the same time continuing to use it themselves. Even the obvious solution, product keys, raised its own questions.

"To my mind, it suggests a situation in which product keys go from being one use only to becoming multi-use subject to some kind of transfer mechanism being put in place. Imagine that Windows 9 goes from having a single, one-use product key to having a product key which can be 'wiped' and reused by a second purchaser. Sound like it could cause problems to you? Me too."

In September of last year, the VZBV threatened to pursue Valve in court if it did not change its EULA to allow Steam users to resell their digital content. The organization also took issue with Valve not allowing an opt-out for users that did not want to sign the new EULA. Ultimately, the VZBV says that digital games should be handled like physical games and the current status quo isn't beneficial to consumers in the long run.

"We have submitted complaint against the company to the district court Berlin," VZBV spokesperson Eva Hoffschulte told Cinema Blend.

The VZBV has stated that it will take its case all the way up to the Supreme Court if Valve doesn't come into compliance with EU law. Valve will be modifying its EULA on January 31, but the VZBV believes that it may be a case of 'too little, too late'.