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.

Getty Images.
Show Hide image

PMQs review: Theresa May shows how her confidence has grown

After her Brexit speech, the PM declared of Jeremy Corbyn: "I've got a plan - he doesn't have a clue". 

The woman derided as “Theresa Maybe” believes she has neutralised that charge. Following her Brexit speech, Theresa May cut a far more confident figure at today's PMQs. Jeremy Corbyn inevitably devoted all six of his questions to Europe but failed to land a definitive blow.

He began by denouncing May for “sidelining parliament” at the very moment the UK was supposedly reclaiming sovereignty (though he yesterday praised her for guaranteeing MPs would get a vote). “It’s not so much the Iron Lady as the irony lady,” he quipped. But May, who has sometimes faltered against Corbyn, had a ready retort. The Labour leader, she noted, had denounced the government for planning to leave the single market while simultaneously seeking “access” to it. Yet “access”, she went on, was precisely what Corbyn had demanded (seemingly having confused it with full membership). "I've got a plan - he doesn't have a clue,” she declared.

When Corbyn recalled May’s economic warnings during the referendum (“Does she now disagree with herself?”), the PM was able to reply: “I said if we voted to leave the EU the sky would not fall in and look at what has happened to our economic situation since we voted to leave the EU”.

Corbyn’s subsequent question on whether May would pay for single market access was less wounding than it might have been because she has consistently refused to rule out budget contributions (though yesterday emphasised that the days of “vast” payments were over).

When the Labour leader ended by rightly hailing the contribution immigrants made to public services (“The real pressure on public services comes from a government that slashed billions”), May took full opportunity of the chance to have the last word, launching a full-frontal attack on his leadership and a defence of hers. “There is indeed a difference - when I look at the issue of Brexit or any other issues like the NHS or social care, I consider the issue, I set out my plan and I stick to it. It's called leadership, he should try it some time.”

For May, life will soon get harder. Once Article 50 is triggered, it is the EU 27, not the UK, that will take back control (the withdrawal agreement must be approved by at least 72 per cent of member states). With MPs now guaranteed a vote on the final outcome, parliament will also reassert itself. But for now, May can reflect with satisfaction on her strengthened position.

George Eaton is political editor of the New Statesman.