A German court has ruled in Valve’s favour in a case hoping to force it to permit the sale of pre-owned Steam codes.
It’s the second time a consumer rights group has failed to force Steam’s hand following a European Court of Justice ruling in 2012 that ruled consumers have the right to re-sell digital purchases.
German consumer watchdog group Verbraucherzentrale Bundesverband argued that if copyright law, through the doctrine of exhaustion, allowed the resale of used computer game DVDs, then a clause in a standard contract restricting the transfer of the online account necessary to play the game was at odds with the basic principles of statutory law and therefore unreasonable, abusive and, ultimately, unenforceable,” legal firm Osborne Clarke said.
So is the Regional Court of Berlin going against Court of Justice of the European Union case law? Not quite. The judges’ comments at the oral hearing held a few days before the verdict transpired do indicate that they do not consider the doctrine of exhaustion to be applicable to digitally distributed computer games at all.
Even as far as physically distributed games are concerned, and the doctrine of exhaustion must indubitably be applied, the court seems to agree with the BGH that the doctrine of exhaustion does not render the no-transfer clauses in Valve’s terms of service unenforceable.
For video game industry stakeholders in Germany, the EU and beyond, this ruling may not be entirely surprising. It is another strong signal that digital and hybrid distribution strategies limiting the potential for software piracy and protecting distribution networks against grey imports are feasible and the contractual clauses implementing them will be enforced by the courts.”