EU rules publishers cannot stop you reselling your downloaded games

[TheDanger 182]

Any software that involves a permanent online connection to the internet Doesnt get a purchase from me. Ie Diablo 3 and ROF

[tf51d 284]

Here's how I see this ruling...

 

1. I sell a license for my software to someone. Part of the cost covers expectations of support.

2. That same someone turns around and sells their license to someone else. I get nothing.

3. Someone else now expects support, but has paid me nothing.

4. The courts are saying this is all ok and legal.

 

That in itself is not the problem. It is actually a wash as far as the developer is concerned, because while you'll provide support to the new user, you will no longer have to support the original user, since he no longer has a legal license himself. So you are still only supporting the single copy. The problem is administering and verifying that a legal (Under this ruling) transfer of product and license took place. I have no idea how this could be accurately done, without considerable cost and resources of the developer (If at all!).

 

I think what you are likely to see if this actually goes into effect, is a lot less developers and publishers selling to the EU, unless the rest of the world does the same thing, which I think unlikely.

[Shaka 2]

1. I sell a license for my software to someone. Part of the cost covers expectations of support.

2. That same someone turns around and sells their license to someone else. I get nothing.

3. Someone else now expects support, but has paid me nothing.

4. The courts are saying this is all ok and legal.

 

"Support" can mean many different things to different businesses. From what I was reading, this could be as little as offering a new download when I buy a new computer, or offering one-on-one problem solving telephone support. I don't think the ruling was saying that you had to offer unlimited support, but perhaps some level of "basic" support.

 

But let's say you did offer the same level of support to the second customer as the original customer. How would this be more expensive? Is the second customer costing extra money? Or is he simply using the same level of services that you are no longer providing to the original customer? It seems to me that you will only be offering support to one customer at a time, and therefore not exceeding the expense of the original customer.

 

Or are you referring to something more specific here? Beyond occasionally re-downloading products, and using website forums (which are usually open to everyone anyways), I personally don't have high expectations of "support". Maybe you are talking about the "bigger picture" of software sales, and not the limited scope of FS add-ons?

 

That in itself is not the problem. It is actually a wash as far as the developer is concerned, because while you'll provide support to the new user, you will no longer have to support the original user, since he no longer has a legal license himself.

 

Ahhh.... you beat me to it.

[cmpbellsjc 2,963]

That in itself is not the problem. It is actually a wash as far as the developer is concerned, because while you'll provide support to the new user, you will no longer have to support the original user, since he no longer has a legal license himself. So you are still only supporting the single copy.

 

That's exactly what I was thinking. If the original user no longer gets support and no longer has the product, then the new owner takes over the addon and now is the one getting support, then it seems like a wash to me, nothing gained or lost to the developer. Just the fact that the developer wont be getting another sale, but the cost of support will remain the same since its still just one owner.

 

The only thing that would cost the developer or publisher some time and expense is if say Flight1, Aerosoft, etc., setup a web page where you could unregister your product as being sold to another individual, then the new owner could proceed to then register the product at the said developers site and receive support/patches/updates. That in itself I could see as being a pain in the butt for the publishers/developers.

 

Overall I do like the idea of being able to re-sell addons that you dont use or want anymore, just like you would any other hobby equipment that ends up sitting in a garage or basement before you put it up for sale. I've accumulated my fair share of addon planes and the occasional scenery that I wouldn't mind putting up for sale in the Bargain Hunter's Shack section of the forum and wouldn't mind recouping a couple dollars back for stuff that I never intend to use again.

[scott967 62]

In the US there is something known as the "first sale" doctrine which generally restricts the exclusive monopoly granted by the government via copyright to the first sale of a work. The applicability of "first sale" to software has been a continuing issue. The most important case to date is a Ninth Circuit decision in a case styled "Vernor v. Autodesk Inc" where the court held that Autodesk could prevent Vernor from selling used copies of a software program "AutoCAD" on E-bay. This ruling applies in the Western US states and territories.

 

scott s.

.

[WarpD 824]

That in itself is not the problem. It is actually a wash as far as the developer is concerned, because while you'll provide support to the new user, you will no longer have to support the original user, since he no longer has a legal license himself. So you are still only supporting the single copy.

 

No, it's not a 'wash'. I know that from a rather simplistic viewpoint it appears that way, however unlimited tech support isn't factored into the product cost. There is the basic expectation that the consumer will require 'x' amount of tech support. This ruling allows for the tech support process to be completely restarted by a new person who paid zero into the process and there's nothing stopping the software from being sold to yet another individual.

 

The only way to prevent a cost overrun is to cease including support as part of the sale and start charging for individual incidents.

[IFR7700 228]

This ruling applies in the Western US states and territories.

 

scott s.

.

 

If the 9th circuit makes a ruling, the ruling applies nationally.

 

 

The devil is in the details. How are these unrestricted transactions going to be allowed? Does this also apply to D/L music or video purchases? It has been my experience, anytime the government or courts become involved in commerce, the law of unintended consequences grows exponentially. Can an EU citizen sell D/L software to an American or vice versa? If I were a software developer, I might have to consider not selling in the EU. Then what? Software developers have made the rules in order to be able to stay in business. This ruling changes that.

[tf51d 284]

No, it's not a 'wash'. I know that from a rather simplistic viewpoint it appears that way, however unlimited tech support isn't factored into the product cost. There is the basic expectation that the consumer will require 'x' amount of tech support. This ruling allows for the tech support process to be completely restarted by a new person who paid zero into the process and there's nothing stopping the software from being sold to yet another individual.

 

The only way to prevent a cost overrun is to cease including support as part of the sale and start charging for individual incidents.

 

No you would just be required to provide the support you would otherwise give to the original owner. Take a car for example that has a 5 year warranty. The original owner sells it after 2 years which transfers the warranty. The new owner doesn't get a new 5 year warranty, but is supported for the remaining 3 years of the existing warranty only. No additional cost, other than the new administrative cost verifying a valid transfer, which can be formidable, especially for the small developer.

[Rich0 0]

The only way to prevent a cost overrun is to cease including support as part of the sale and start charging for individual incidents.

 

Actually, there is another way. Explicitly state that a certain amount of support (so many incidents, so many hours, etc) are included in the purchase. You would need to track that obviously which is an overhead, but I'd think it would be trivial compared to the cost of support itself. If the license were transferred, then so would the support obligation, but the counter would not be reset.

 

This is very similar to what happens with cars - you buy one with a warranty and sell it. The warranty follows the car, but still counts down from the original sale date. I think the same is the case when vendors offer free maintenance with a car - the support follows the car.

 

In any case, I do feel for those making commercial add-ons. I tend to cringe at the prices, but the reality is that these prices are VERY good for what they are. When the latest big-name FPS title sells for $70 a huge percentage of that is profit since the development costs are amortized across millions of sales. I don't know how many people buy a $60 aircraft, but I imagine the costs for the nicer ones are considerable and are certainly borne by far fewer people. I suspect this is a bit of a labor of love for those involved, and it is a shame that the necessary costs tend to create some division in what would otherwise be a tight community.

[Steve Halpern 176]

Regarding those that say support transferred is equal... "you are not supporting 2, because it is still only 1 person you support."

 

This is, for the most part incorrect.

 

Lets say a staff member works to configure a computer for a customer to get a product optimized. They go back and forth a few times, make setting adjustments, etc. When the first user sells to a second user he is not transferring this knowledge (unless notes were made and transferred). The 2nd user may require a full 2nd round of support by staff... and so on if the 2nd user then sells it.

 

The whole question of support is another topic really... some companies do sell support "You get 90 days free support then you can renew", and some do not even actually offer support in their agreements! But of course they have to offer it because the reputation of offering no support is not a good one. Now it may get tricky in the EU of you sell the used software with 28 days left in a purchased support plan, if you have to continue support. I guess in due course that will be figured out. In reading the agreement, I did see parts that mentioned "services" cannot be transferred as there is nothing tangible, i.e. a CD ROM or download file to go with it. So there are a few gray areas and more reading is required.

 

Jeff makes a reasonable assessment, and arguing over who or what is right really in the end does not matter. 3rd part addon companies do exist, and in many cases there is a thin line between making addons or not. If by chance this ruling affects vendors excessively, it would likely reduce the amount of addons in the long run, or it could move software to the Cloud, which may require changes to sofware distribution in general, like you buying software on a per month basis... i.e. $39.95 for the first month, $2.00 for each additional month, with you needing to be connected to a Cloud or other server in the process while using. I think this would be a terrible direction for the hobby.

 

So folks need to keep this preliminary ruling all in perspective.

[tf51d 284]

Regarding those that say support transferred is equal... "you are not supporting 2, because it is still only 1 person you support."

 

This is, for the most part incorrect.

 

Lets say a staff member works to configure a computer for a customer to get a product optimized. They go back and forth a few times, make setting adjustments, etc. When the first user sells to a second user he is not transferring this knowledge (unless notes were made and transferred). The 2nd user may require a full 2nd round of support by staff... and so on if the 2nd user then sells it.

 

The whole question of support is another topic really... some companies do sell support "You get 90 days free support then you can renew", and some do not even actually offer support in their agreements! But of course they have to offer it because the reputation of offering no support is not a good one. Now it may get tricky in the EU of you sell the used software with 28 days left in a purchased support plan, if you have to continue support. I guess in due course that will be figured out. In reading the agreement, I did see parts that mentioned "services" cannot be transferred as there is nothing tangible, i.e. a CD ROM or download file to go with it. So there are a few gray areas and more reading is required.

 

Jeff makes a reasonable assessment, and arguing over who or what is right really in the end does not matter. 3rd part addon companies do exist, and in many cases there is a thin line between making addons or not. If by chance this ruling affects vendors excessively, it would likely reduce the amount of addons in the long run, or it could move software to the Cloud, which may require changes to sofware distribution in general, like you buying software on a per month basis... i.e. $39.95 for the first month, $2.00 for each additional month, with you needing to be connected to a Cloud or other server in the process while using. I think this would be a terrible direction for the hobby.

 

So folks need to keep this preliminary ruling all in perspective.

 

In my view the only support a developer should be required to provide, is fixing identified program bugs in their software. (I know though sometimes there is a fine line between what's a bug vs a missing feature). Hand holding support after a period though I think it is reasonable for a developer to ask for additional compensation! Many times the answer to a users issue is in the provided documentation that they just didn't bother to read. My favorite is complaints Captain Sim gets with their 757/767 complaining about blank displays and the AP not working! Well that's because CS defaults to turning the IRS's off.

[Shaka 2]

You know, we might be getting ahead of ourselves here. As far as I can tell, this would only apply to EU customers, and how that would affect an American company doing business online with that EU customer is unclear to me. Mathijs at Aerosoft already had a post up about second-hand sales that he recently updated:

 

http://forum.aerosof...ar-booth-sales/

 

I'm not sure if this is completely in keeping with the spirit of the ruling, but I'll leave that for him to figure out. He's basically saying that allowing you to re-sell the software doesn't mean you are entitled to unlimited support, and that you should not expect it.

 

Nothing I've read online about the ruling disagrees with this. The only specific information about support was that the supplier had to permit the 2nd purchaser to download the software. It didn't say anything about unlimited customer support calls, or whatever. It doesn't seem very specific, which is why I wouldn't get too upset over it right now, and adopt a "wait and see" attitude.

 

Some of the commercial vendors here have raised legitimate concerns. All I can tell them is that technology is constantly changing, and sometimes they have to adapt to comply with new laws. The ones that can't adapt, are likely to be out of business.

[Yahooligan 0]

They have no jurisdiction over U.S.produced software. EU can make that claim, but it is meaningless in the U.S. as far as I know. And EU can try to make the claim that users "own" their software and can resell it. But, users who purchase DLC own a "license", they do not own the software. The true "owner" is the author who holds the copyright, domestic or abroad. So I guess based upon that fact, you can only resell downloaded software you "own" as in "copyright" ownership. If you do not own the copyright, then you do not have the right to resell it, but are bound by the conditions of your license, period. I really don't care what the EU court has to say about it.

 

But as a developer, what I would then require is that the user who resells the software I sold them, grant me exclusive access to their PC to determine if in fact the software in question has been removed before I generate a new license for the new owner of the DLC. Just because a user claims they have removed it and have released their license to another, is just not enough proof. And I just know that users would be more than happy to oblige....NOT!

[NathanHalley 0]

They have no jurisdiction over U.S.produced software. EU can make that claim, but it is meaningless in the U.S. as far as I know.

 

I think the question that needs to be answered, though, is what if you are a US based developer that is selling to the EU. For example, Microsoft has to make different versions of Windows to comply with EU laws because they want to do business in the EU. I would be interested to hear from someone who actually knows what they are talking about on this.

 

And also, I agree that there seems to be a consensus that you only own a "license," but could it be that this ruling is stating that you actually own the software? At least in the EU?

[tf51d 284]

If you do not own the copyright, then you do not have the right to resell it, but are bound by the conditions of your license, period. I really don't care what the EU court has to say about it.

 

 

Wrong, they would not be reselling the copyright, since they don't own the rights to do so, but they can resell their license to use it to someone else under this ruling. The analogy is you buy a book, then resell it at a flea market. The new buyer now have the right and license to read it, because the actual product changed hands, but the copyright still remains with the author. The difference here as you pointed out is because of the reproducible aspect of software there is an issue of verifiability! Incidentally This ruling is going to affect the record and movie business too, because license downloadable music and videos will now be able to be resold, which of course except for the support isue, is the same type of thing! The RIAA and MPAA are going to love that!!

 

And also, I agree that there seems to be a consensus that you only own a "license," but could it be that this ruling is stating that you actually own the software? At least in the EU?

 

No I'm sure it's only the license, International Copyright Law would still apply!!