Game On: Used software can be sold legally says ECJ

People who download software such as games could legitimately resell them following a ruling by the European Court of Justice (ECJ).

The decision by the ECJ was made at the beginning of July when Oracle tried to stop German company, UsedSoft, from reselling its licences.

The court said that if a rights-holder provides a person with access to software, and a licence to use it for an unlimited period, it would be considered a ‘sale' of the software.

This would apply whether the software was supplied on CD or DVD or downloaded from the internet, regardless of a company's terms and conditions.

The court ruled that where such a sale has taken place, the rights-holder could not, in principle, prevent the subsequent sale of that software.

The original customer could make a copy to sell on without worrying about copyright infringement, provided that they gave up their rights to use it by permanently deleting their copy.

Indradeep Bhattacharya, at law firm Pinsent Masons said: "This ruling is based on particular facts of the Oracle licences that were in issue. Though it remains to be seen how the decision is interpreted in the national courts, the decision may have a wide-ranging impact on the gaming industry.

"If a games developer or a company that provides a platform for playing games offers a game the user can download and use for an unlimited period, it may not be able to prevent that user from selling these rights to another person."

He pointed out however that if a company offers online gaming facilities the user can access for a limited time, it may be able to say there is no sale of the game as it is offering a service. The ruling therefore would have limited impact on online gaming services such as Xbox Live.

The Association for UK Interactive Entertainment (UKIE), the trade body for games and interactive entertainment, said it would be watching the impact of this judgment.

"We will see what effect it has on the games and interactive entertainment industry, ensuring it doesn't negatively affect the growth of the UK's leading creative industry," a representative told us.

Although companies such as Steam and EA are likely to be keenly watching developments, it is also likely to affect the movie and music industry as well. We asked Steam and  the BPI for comment but neither has responded to our questions.

The UK's intellectual Property Office said the effects of the ECJ ruling for UK downloaders would not be understood until the results of more test cases were known.

The English courts would have to apply the ECJ ruling and interpret it as far as possible to our copyright law, which the Goverment is already considering changing in light of the Hargreaves report.

Any outcome would also depend on the facts of the case.