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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To preserve the environment we hold in common, everyone has to play their part

The challenge of building a clean future based on the common good of Londoners demands that politicians, business, communities and individuals each take a share of the responsibility and of the benefits.

The environmental challenge facing our capital city can seem overwhelming. Our air is poisonous. Our infrastructure built for the fossil fuel era. The need to build a clean, low carbon future can seem incompatible with competing challenges such as protecting energy security, housing and jobs.

The way we tackle this challenge will say a lot about the type of city we are. We inherit the world we live in from the generations that went before us, and only hold it until it is time to hand it over to future generations. The type of environment we leave behind for our children and grandchildren will be affected by the decisions we need to take in the short term. Our shared inheritance must be shaped by all of us in London.

Londoners currently face some crucial decisions about the way we power our city. The majority of us don't want London to be run on dirty fuel, and instead hope to see a transition to a clean energy supply. Many want to see that clean energy sourced from within London itself. This is an appealing vision: there are upsides in terms of costs, security and, crucially, the environment.

Yet the debate about how London could achieve such a future has remained limited in its scope. Air pollution has rightly dominated the environmental debate in this year’s mayoral election, but there is a small and growing call for more renewable deployment in the city.

When it comes to cities, by far the most accessible, useable renewable energy is solar, given you can install it on some part of almost every roof. Rooftop solar gives power to the householder, the business user, the public servant - anyone with a roof over their head.  And London has upwards of one million roofs. Yet it also has the lowest deployment of solar of any UK city. London can do better. 

The new mayor should take this seriously. Their leadership will be vital to achieving the transition to clean energy. The commitments of the mayoral frontrunners should spur other parts of society to act too. Zac Goldsmith has committed to a tenfold increase in the use of solar by 2025, and Sadiq Khan has pledged to implement a solar strategy that will make the most of the city’s roofs, public buildings and land owned by Transport for London.

While the next mayor will already have access to some of the tools necessary to enact these pledges (such as the London Plan, the Greater London Assembly and TfL), Londoner’s must also play their part. We must realise that to tackle this issue at the scale and speed required the only way forward is an approach where everyone is contributing.

A transition to solar energy is in the best interests of citizens, householders, businesses and employees, who can begin to take greater control of their energy.  By working together, Londoners could follow the example of Zurich, and commit to be a 2,000 watt society by 2050. This commitment both maximizes the potential of solar and manages introduces schemes to effectively manage energy demand, ensuring the city can collectively face an uncertain future with confidence.

Unfortunately, national policy is no longer sufficient to incentivise solar deployment at the scale that London requires. There is therefore an important role for the incoming Mayor in facilitating and coordinating activity. Whether it is through TfL, existing community energy schemes, or through individuals, there is much the mayor can do to drive solar which will benefit every other city-dweller and make London a cleaner and healthier place to live.

For example the new mayor should work with residents and landlords of private and social housing to encourage the deployment of solar for those who don’t own their property. He should fill the gap left by national building standards by ensuring that solar deployment is maximized on new build housing and commercial space. He can work with the operator of the electricity grid in the capital to maximize the potential of solar and find innovative ways of integrating it into the city’s power demand.

To bring this all together London should follow the example set by Nottingham and Bristol and create it’s own energy company. As a non-profit company this could supply gas and electricity to Londoners at competitive prices but also start to drive the deployment of clean energy by providing an attractive market for the power that is generated in the city. Community schemes, businesses and householders would be able to sell their power at a price that really stacks up and Londoners would receive clean energy at competitive prices.

The challenge of building a clean future based on the common good of Londoners demands that politicians, business, communities and individuals each take a share of the responsibility and of the benefits. Lets hope the incoming Mayor sees it as their role to convene citizens around this aim, and create incentives to virtue that encourage the take up and deployment of solar, so that we have a healthy, clean and secure city to pass on to the next generation.