European court rules that downloads are resaleable

Licence agreements can't stop your statutory rights, the ECJ rules

The European Court of Justice has ruled that consumers have the right to resell downloaded software as "used", even if the software is sold under a license that prevents it.

The case (pdf) concerned Oracle, the enterprise computing company, which sued a German firm UsedSoft. Oracle allows customers who have paid for a license to download copies from their website for use on up to 25 computers, as well as offering free access to updates, and it does so under an agreement which gives the customer "a non-transferable user right for an unlimited period, exclusively for their internal business purposes".

UsedSoft allows that license to be resold, contravening Oracle's agreement. It buys the access to the download site from users, and sells that access on.

The court was asked to consider whether the European first sale doctrine applies to downloads. For physical goods, it has long been held that exclusive rights to distribution are exhausted after the first sale. So, for example, HMV can have the exclusive right to sell One Direction's new album, but they cannot prevent you buying the album and then selling it on yourself – even if they make you sign something beforehand. It decided that when a right to use software for an unlimited period of time is exchanged for money, that constitutes a sale, and thus the first sale doctrine applies.

Importantly, the court also ruled that the right to updates is sold on, preventing one possible route around the judgement. Oracle must treat owners of second-hand software the same as those who buy it new for the purpose of software updates.

The right to resell still requires the first owner to remove the software, and it doesn't allow you to "split" multi-user licenses and sell off unused capacity. But it is nonetheless a major blow for users in the digital age.

However, although the judgment gives users the legal right to resell software, it doesn't mandate that retailers make that right practical to exercise. If you want to resell your copy of Angry Birds, you'll have to give your entire iTunes account over to whoever wants to use it. A thriving resale market is unlikely to emerge anytime soon.

The eponymous "Angry Birds", whom you may now resell. Photograph: Getty Images

Alex Hern is a technology reporter for the Guardian. He was formerly staff writer at the New Statesman. You should follow Alex on Twitter.

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After Article 50 is triggered, what happens next?

The UK must prepare for years, if not decades, of negotiating. 

Back in June, when Europe woke to the news of Brexit, the response was muted. “When I first emerged from my haze to go to the European Parliament there was a big sign saying ‘We will miss you’, which was sweet,” Labour MEP Seb Dance remembered at a European Parliament event in London. “The German car industry said we don’t want any disruption of trade.”

But according to Dance – best known for holding up a “He’s Lying” sign behind Nigel Farage’s head – the mood has hardened with the passing months.

The UK is seen as demanding. The Prime Minister’s repeated refusal to guarantee EU citizens’ rights is viewed as toxic. The German car manufacturers now say the EU is more important than British trade. “I am afraid that bonhomie has evaporated,” Dance said. 

On 31 March the UK will trigger Article 50. Doing so will end our period of national soul-searching and begin the formal process of divorce. So what next?

The European Parliament will have its say

In the EU, just as in the UK, the European Parliament will not be the lead negotiator. But it is nevertheless very powerful, because MEPs can vote on the final Brexit deal, and wield, in effect, a veto.

The Parliament’s chief negotiator is Guy Verhofstadt, a committed European who has previously given Remoaners hope with a plan to offer them EU passports. Expect them to tune in en masse to watch when this idea is revived in April (it’s unlikely to succeed, but MEPs want to discuss the principle). 

After Article 50 is triggered, Dance expects MEPs to draw up a resolution setting out its red lines in the Brexit negotiations, and present this to the European Commission.

The European Commission will spearhead negotiations

Although the Parliament may provide the most drama, it is the European Commission, which manages the day-to-day business of the EU, which will lead negotiations. The EU’s chief negotiator is Michel Barnier. 

Barnier is a member of the pan-EU European People’s Party, like Jean-Claude Juncker and German Chancellor Angela Merkel. He has said of the negotiations: “We are ready. Keep calm and negotiate.”

This will be a “deal” of two halves

The Brexit divorce is expected to take 16 to 18 months from March (although this is simply guesswork), which could mean Britain officially Brexits at the start of 2019.

But here’s the thing. The divorce is likely to focus on settling up bills and – hopefully – agreeing a transitional arrangement. This is because the real deal that will shape Britain’s future outside the EU is the trade deal. And there’s no deadline on that. 

As Dance put it: “The duration of that trade agreement will exceed the life of the current Parliament, and might exceed the life of the next as well.”

The trade agreement may look a bit like Ceta

The European Parliament has just approved the Comprehensive Economic and Trade Agreement (Ceta) with Canada, a mammoth trade deal which has taken eight years to negotiate. 

One of the main stumbling points in trade deals is agreeing on similar regulatory standards. The UK currently shares regulations with the rest of the UK, so this should speed up the process.

But another obstacle is that national or regional parliaments can vote against a trade deal. In October, the rebellious Belgian region of Wallonia nearly destroyed Ceta. An EU-UK deal would be far more politically sensitive. 

The only way is forward

Lawyers working for the campaign group The People’s Challenge have argued that it will legally be possible for the UK Parliament to revoke Article 50 if the choice is between a terrible deal and no deal at all. 

But other constitutional experts think this is highly unlikely to work – unless a penitent Britain can persuade the rest of the EU to agree to turn back the clock. 

Davor Jancic, who lectures on EU law at Queen Mary University of London, believes Article 50 is irrevocable. 

Jeff King, a professor of law at University College London, is also doubtful, but has this kernel of hope for all the Remainers out there:

“No EU law scholar has suggested that with the agreement of the other 27 member states you cannot allow a member state to withdraw its notice.”

Good luck chanting that at a march. 

Julia Rampen is the editor of The Staggers, The New Statesman's online rolling politics blog. She was previously deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines.