European Union court: Consumers have the right to re-sell their Digitally Distributed games

[theRepublic]

noname2200 said:

Problem No. 1: what about software that physically doesn't permit second hand sales?

How does this case apply to mobile apps, where of course there is no resale/trade ability? We don't know. On the one hand, a straightforward analysis might be that mobile apps are software just like Oracle's program in the case and therefore that the first purchaser of a mobile app should be able to sell it to a second purchaser (even if technically the ability to do that doesn't exist…yet). On the other hand, there is at least an argument that the first purchaser of an app shouldn't have the ability to resell the app to a third party due to this case, because when that first purchaser bought the app she would have had no technical ability – or even the expectation - of being able to sell it to a third party.

In other words, what I'm saying here is, if the software was never technically capable of being sold to a third party in the first place, does this case change anything really? The return might be, of course, that arguing about technical abilities isn't really the point: if the law says that mobile apps should be capable of being sold second hand, then the mobile platforms better do something about it.

Leaving mobile aside, the real problem area is where software easily could be made capable of second hand sales – but hasn't. Digital distribution platforms, for example, could in principle permit digital second hand sales (Green Man Gaming already does, for example) – so it will be interesting to see what impact this case has on them.

The article in the OP seems to disagree with the Gamasutra article on this point.

"'Therefore the new acquirer of the user licence, such as a customer of UsedSoft, may, as a lawful acquirer of the corrected and updated copy of the computer program concerned, download that copy from the copyright holder’s website.'

This means Steam, GOG, Origin, et al., NEEDS to supply a way to transfer the ‘right to download the game’ to the proper party.  Whether this feature will include a nominal fee or not remains to be seen.  Don’t be surprised if it does; the potential revenue to be made there is astounding.  Here’s a hypothetical for you: Even if the fee is something around ten cents and it’s Euro counterpart, the volume alone could net Gabe and company quadrillions of dollars.  Gorillians even."

Any thoughts on who is right?  My thought is that Gamasutra missed that point, and the digital sellers will need to support used sales.  I could be wrong though.