So you think you own your downloads? C-128/11 Usedsoft and the resale of digital content. Presentation & discussion: 25/02/13 14.30-16.30, Seminar Room 4.

A- A A+

On the 25th February (14.30-16.30, Room 4, Badia), Eleonora Rosati (University of Cambridge) will give the following presentation:

“Not just another copyright case: the UsedSoft decision and its implications for European content industries and consumers”

This will be followed by a short presentation by Emma Linklater (EUI) on the future of a ‘second-hand’ market for eBooks and digital music.

If you’ve ever bought [or downloaded] content online, this discussion matters for you!

About the case:

In its decision on 3 July 2012 in Case C-128/11 Usedsoft v Oracle the Court of Justice of the European Union (CJEU) clarified the conditions which give rise to the exhaustion of the right of distribution following the first sale of a computer program which has been lawfully downloaded from the copyright holder’s website, as well as the rights enjoyed by subsequent acquirers of the licence originally granted for an unlimited period to the first acquirer.

The impact of this judgement promises to be significant, both in theoretical and practical terms.

The decision not to distinguish, for the purpose of applying the principle of exhaustion, the case in which a computer program is made available by means of a download from that in which the program is embodied in a physical medium looks sensible, in that it reflects current business practices and is also consistent with the principle of equal treatment. However, it looks difficult to reconcile this conclusion with international instruments, in particular with the notion of ‘copy’ as envisaged in the agreed statements concerning Articles 6 and 7 of the WIPO Copyright Treaty.

Furthermore, controversy is likely to arise in relation to the path of reasoning followed by the Court. In holding that the grant of a licence for an unlimited period of time, along with the downloading of a copy of a computer program, is tantamount to a transfer of property, the CJEU achieved a result which, while being neither obvious nor uncontroversial at the level of individual Member States, substantially differs from the approach embraced by US courts in similar cases concerning the application of the first sale doctrine.

Overall, the above may result in software houses having to alter their licensing terms (eg to limit the duration of licences), in order (to try) to avoid the exhaustion of the right of distribution, and possibly also in the adoption of diversified commercial strategies between the US and Europe. This session will look at the legitimacy of new online services such as ReDigi, under US and EU law respectively and, more generally, the regulation of sales of second-hand digital works. Of particular interest is the recent granting of a patent to Amazon for a marketplace for used ‘digital objects’ including eBooks, music, apps and films.

Format of the session:

The session will consist of two presentations. Eleonora Rosati will present her perspective on the Usedsoft decision itself. This will be followed up by a presentation by Emma Linklater how applying the principle of exhaustion could affect other digital content industries, in particular whether there is now scope for a second-hand market for eBooks and digital music.

After the presentations there will be time for questions and a discussion. Although the session centres around a case, the subject we will be looking at is of much greater significance – we welcome interested participants from all departments, whether for academic or personal interest.