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.

Ukip's Nigel Farage and Paul Nuttall. Photo: Getty
Show Hide image

Is the general election 2017 the end of Ukip?

Ukip led the way to Brexit, but now the party is on less than 10 per cent in the polls. 

Ukip could be finished. Ukip has only ever had two MPs, but it held an outside influence on politics: without it, we’d probably never have had the EU referendum. But Brexit has turned Ukip into a single-issue party without an issue. Ukip’s sole remaining MP, Douglas Carswell, left the party in March 2017, and told Sky News’ Adam Boulton that there was “no point” to the party anymore. 

Not everyone in Ukip has given up, though: Nigel Farage told Peston on Sunday that Ukip “will survive”, and current leader Paul Nuttall will be contesting a seat this year. But Ukip is standing in fewer constituencies than last time thanks to a shortage of both money and people. Who benefits if Ukip is finished? It’s likely to be the Tories. 

Is Ukip finished? 

What are Ukip's poll ratings?

Ukip’s poll ratings peaked in June 2016 at 16 per cent. Since the leave campaign’s success, that has steadily declined so that Ukip is going into the 2017 general election on 4 per cent, according to the latest polls. If the polls can be trusted, that’s a serious collapse.

Can Ukip get anymore MPs?

In the 2015 general election Ukip contested nearly every seat and got 13 per cent of the vote, making it the third biggest party (although is only returned one MP). Now Ukip is reportedly struggling to find candidates and could stand in as few as 100 seats. Ukip leader Paul Nuttall will stand in Boston and Skegness, but both ex-leader Nigel Farage and donor Arron Banks have ruled themselves out of running this time.

How many members does Ukip have?

Ukip’s membership declined from 45,994 at the 2015 general election to 39,000 in 2016. That’s a worrying sign for any political party, which relies on grassroots memberships to put in the campaigning legwork.

What does Ukip's decline mean for Labour and the Conservatives? 

The rise of Ukip took votes from both the Conservatives and Labour, with a nationalist message that appealed to disaffected voters from both right and left. But the decline of Ukip only seems to be helping the Conservatives. Stephen Bush has written about how in Wales voting Ukip seems to have been a gateway drug for traditional Labour voters who are now backing the mainstream right; so the voters Ukip took from the Conservatives are reverting to the Conservatives, and the ones they took from Labour are transferring to the Conservatives too.

Ukip might be finished as an electoral force, but its influence on the rest of British politics will be felt for many years yet. 

0800 7318496