Euroipean Court of Justice ruling on software resale - Nintendo's position

#1The-RoryPosted 5/17/2013 5:47:23 AM
Hello everyone.

If you live in the EU you may be aware of a judgement passed by the European Court of Justice that ruled in favour of users being able to transfer software licenses between users regardless of an EULA that might say otherwise. As we all know Nintendo's eshop offers no facility for doing this bar an all or nothing system transfer facility. I contacted Nintendo Europe's customer service with a copy of the ruling and asked for their position. Their answers where interesting to say the least. What do you guys think of this? I'm personally amused by their reasoning as to why this ruling apparently does not apply to them and I plan to take this further, once I have figured out how. Anyway, enjoy...

A link to the ruling can be found at:

http://www.eurogamer.net/articles/2012-07-03-eu-rules-publishers-cannot-stop-you-reselling-your-downloaded-games

Nintendo's response to the copy of the judgement I sent them.

Thank you for your email.

We deeply appreciate that you have been a loyal consumer of Nintendo products for so many years. We take this as a sign that the quality of both Nintendo software and hardware has always met your expectations. This being said, we regret to hear that for the time being you do not intend to buy further games for the reasons pointed out in your email. We can assure you that we take your point very seriously.
In your email, you claim that the current digital distribution of Nintendo is not in line with the recent decision of the Court of Justice of the European Union (CJEU) in UsedSoft v. Oracle (case no. C-128/11). Your reading of the judgment is that the principle of exhaustion is also applicable to Nintendo video games purchased in the eShop. Based on this assumption you conclude that it is not legally feasible to technically link the purchased games to your Nintendo account.
We have carefully considered your arguments and the aforementioned decision of the CJEU. As a result of our analysis, we unfortunately cannot share your understanding of the judgment.
In a nutshell, we would like to emphasise the following points:
1. The CJEU in UsedSoft only decided on a mere computer program but not on video games. A video game is a complex work which consists of multiple different elements in different work categories (audio-visual works like pictures, sounds, etc. as well as computer programs), i.e. a video game is a so-called multimedia work. Audio-visual works and computer programs are regulated under different legal regimes of copyright. The ruling of the CJEU only deals with computer programs. It does not follow from that decision that the first sale doctrine also applies to multimedia works. To the contrary, multimedia works have to be treated differently.
2. Even if the judgment was applicable to video games (which we think is not the case), the CJEU expressly allowed the distributors of computer programs to use Technical Protection Measures (TPM) such as product keys in order to avoid the uncontrolled passing of software from one user to another. The linking of software to the Nintendo account is such TPM. Hence, the current distribution policy of Nintendo is in line with the UsedSoft ruling of the CJEU.
We hope that these qualities, which apparently have convinced you to purchase and use our products in the past, will convince you to remain a Nintendo customer.

We do hope that this information is of benefit to you, we thank you for your kind attention and continued support.

Kind regards,

Nintendo UK
#2nonexistingheroPosted 5/17/2013 6:46:04 AM
Nintendo would need to invent such a system in order to do that. Basically, they won't allow the reselling of digital content unless they're forced to.

I personally they can make some money out of it though. Improve the account system. Then create a system where consumers can sell their game. After you put it up for sale, you have to erase your game. Nintendo could even make it more interesting by making a copy of your save file (if you wish), so that you can sell the game including the save file. Let players decide their own selling price, as long as it's under the retail price (or at least 5 to 10 under it).

Nintendo will take 10-20% of every sold game. Basically, if you sell a game for 20, Nintendo will get 2 or 4.

The catch is that you won't get any of the Nintendo bonuses with buying a used game. I guess this also means that Nintendo should make it more appealing to buy it new, with even bigger bonuses. It would require some work, but I think it can be turned into a system everyone's happy with and that would benefit gaming as a whole.
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#3_FifthWarrior_Posted 5/17/2013 6:52:41 AM
Holy crap, they actually wrote back to you with such a considered response? I'm impressed.

Legally, their argument is sound. Not so much the 1st point as the 2nd.
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#4SMASHKING84Posted 5/17/2013 6:53:31 AM
big corprations only care about the law if it makes them more profit.
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#5x_stevey_xPosted 5/17/2013 7:01:34 AM(edited)
cool that you got an email like that

but it was kinda painful reading their first reason..it blatantly sounded as though they were trying to make up any excuse to get out of it.. like a child caught stealing a cookie and trying to get out of being grounded

also this part made me cringe "As a result of our analysis, we unfortunately cannot share your understanding of the judgment." yeh i'm sure they think it's so unfortunate. reminds me of when i contest a bogus parking ticket with evidence via mail and get shut down even though my evidence distinctly shows i'm innocent. they'll just keep doing it because they can
#6BeanBeanKingdomPosted 5/17/2013 6:57:08 AM
x_stevey_x posted...
cool that you got an email like that

but it was kinda painful reading their first reason..it blatantly sounded as though they were trying to make up any excuse to get out of it.. like a child caught stealing a cookie and trying to get out of being grounded


I dunno, if it's true that multimedia works are legally different from computer programs, then it's a sound argument. It's just worded funnily.
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#7SlippyComeBackPosted 5/17/2013 7:02:12 AM
The ruling in more depth:

"Where the copyright holder makes available to his customer a copy - tangible or intangible - and at the same time concludes, in return form payment of a fee, a licence agreement granting the customer the right to use that copy for an unlimited period, that rightholder sells the copy to the customer and thus exhausts his exclusive distribution right. Such a transaction involves a transfer of the right of ownership of the copy. Therefore, even if the licence prohibits a further transfer, the rightholder can no longer oppose the resale of that copy."

There is one condition, however. If you resell a license to a game you have to make your copy "unusable at the time of resale". Now you will do that, won't you?

"If he continued to use it," the Court explained, "he would infringe the copyright holder's exclusive right of reproduction of his computer program. In contrast to the exclusive right of distribution, the exclusive right of reproduction is not exhausted by the first sale."


Why does the EU insist in making the market for videogames even more complicated -_-
#8x_stevey_xPosted 5/17/2013 7:03:10 AM
BeanBeanKingdom posted...
x_stevey_x posted...
cool that you got an email like that

but it was kinda painful reading their first reason..it blatantly sounded as though they were trying to make up any excuse to get out of it.. like a child caught stealing a cookie and trying to get out of being grounded


I dunno, if it's true that multimedia works are legally different from computer programs, then it's a sound argument. It's just worded funnily.


so pc games aren't multimedia works but console games are? or only non game programs? what about programs that have sound and video included but aren't games?
#9The-Rory(Topic Creator)Posted 5/17/2013 7:16:45 AM
I personally think their reasoning is kind of cute in a very much wrong kind of way. I do want to try and take this to its logical conclusion but I must say I lack experience in taking multinationals to court and wouldn't know where to begin.

In the mean time I would be happy just to get this circulated as widely as possible just to see what kind of stink it would cause so feel free to redistribute this wherever. I would have posted this on Neogaf but I cannot create an account. Anything that makes Nintendo look bad is hot property there and can sometimes feed back into the press.
#10ferofaxPosted 5/17/2013 12:23:43 PM
Hmm. Is it worth doing all this just so you can "resell" digital copies of your games? Do you resell MP3s once you're done listening to them?

Somebody's trying really hard to squeeze every penny they can, seems to me.
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