Nintendo do not believe the European courts ruling on second hand digital software applies to them

  • The-Rory 26 May 2013 13:57:34 2 posts
    Seen 2 years ago
    Registered 6 years ago
    Remember the court case between Oracle and UsedSoft where the European court of justice determined software vendors could not prevent the sale or transfer of software licenses between users? I personally did not believe Nintendo's eShop policies where up to scratch on this so I contacted their customer services with my opinion and provided them with a copy of the ruling. I got this rather amusing reply a few weeks later. Read and form your own conclusions. If you need a recap on the ruling you can reed it again here.

    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
    Edited by The-Rory at 14:01:52 26-05-2013
  • CosmicFuzz 26 May 2013 15:00:05 32,585 posts
    Seen 2 months ago
    Registered 13 years ago
    Sounds like pretty sound reasoning from Nintendo to me, especially the part about multimedia being classed different from computer programs. Plus, no other platform has changed anything either.
  • wayneh 26 May 2013 15:05:19 2,599 posts
    Seen 12 months ago
    Registered 11 years ago
    Hmmm I wouldn't class a video game as outside this ruling but until this is challenged in the courts there is not a lot that can be done. As this would be prohibitively expensive to 99.9% of all gamers I can't see this changing any time soon.
  • Kostabi 26 May 2013 15:09:23 5,916 posts
    Seen 5 months ago
    Registered 14 years ago
    Fair play to Nintendo for putting some effort into that reply.
  • DFawkes Friendliest Forumite, 2016 26 May 2013 16:07:58 32,229 posts
    Seen 2 hours ago
    Registered 14 years ago
    I'm surprised they even answered. I don't think any console manufacturer really cares as the ruling said you couldn't block a sale, not that you had to make it possible. As such, it's open to interpretation whether locking stuff to an account/console counts as blocking or not.

    Their reasoning does seem a bit silly though. Of course games are software.
  • mrharvest 26 May 2013 16:32:54 5,591 posts
    Seen 1 day ago
    Registered 16 years ago
    Contact EFF and get a class action suit going somewhere progressive like the Netherlands or Sweden. Of course Nintendo (and Sony and Microsoft and Valve and...) are going to refuse this until someone forces them to comply. It's going to cost them money to implement this and they'll lose sales as a result. Oh, and technically the court ruling doesn't mean that companies need to implement any way of transferring software ownership - it's just that they can't sue you if there is nothing prohibiting the transfer.
  • Deleted user 26 May 2013 16:45:15
    Kostabi wrote:
    Fair play to Nintendo for putting some effort into that reply.
    That's a fair point, except it makes me suspicious that they know they're not on as safe ground as they're making out they are: it sounds to me like they've got their lawyers to put that together, rather than just sending out the usual standardised guff that you normally get when you contact a company of Nintendo's size and scope.
  • ZuluHero 26 May 2013 16:45:29 7,410 posts
    Seen 13 minutes ago
    Registered 13 years ago
    Yes games are software, but are they computer programs? Trying to classify something as something is where most of these legal loophole occur. Fair play to Nintendo though, it really is a well written response.
  • Deleted user 26 May 2013 16:52:17
    There is arguably some very flawed reasoning in Nintendo's response, conversely, there's also a lot that's pretty sound.

    The computer program/games-as-multimedia distinction is, in my opinion, one that is horribly arguable and one I don't think Nintendo would win both on a descriptive and technical assessment. Seeing as that lies at the heart of their argument, that's a pretty damn big hole right there.

    Nintendo should also probably take in mind that the ECJ's purposive approach has been very broad in enforcing EU law and they'd more as like as not love to enforce consumer rights in this matter. Notwithstanding that, Nintendo should also bear in mind that, International trade agreements apart, giving third country industries who enjoy throwing their weight around a bloody nose makes the shrivelled and wilted AGs and justices of the ECJ painfully aroused.
  • mal 26 May 2013 17:51:00 29,326 posts
    Seen 1 year ago
    Registered 17 years ago
    Yeah, same interpretation here. I strongly suspect there are at least some images and possibly some error sounds included in Oracle's front end software, so I don't really see how a computer game and it are different, on a technical level. But if Nintendo's reading of the CJEU's ruling is correct (that TPMs are allowed, and Nintendo's locking of games to accounts is a TPM) then they've got an argument there. Does strike me as a very odd ruling from the EU though - you must be able to transfer software, but only if the manufacturers haven't stopped you.
  • The-Rory 27 May 2013 09:35:30 2 posts
    Seen 2 years ago
    Registered 6 years ago
    I would love to take this further but have no idea where to even begin. In the mean time I simply won't be buying eshop software. Also I would love to see their response get a wider distribution just to see the reaction it will cause. Anyone who reads this feel free to link to this or repost it elsewhere.
  • DFawkes Friendliest Forumite, 2016 27 May 2013 10:25:51 32,229 posts
    Seen 2 hours ago
    Registered 14 years ago
    As far as complying to the law goes, I still think it's too open to interpretation to make any legal action worth investing into. Their response might be a bit questionable, but it'd be just one of the many defences they could use in court. As has been said, the ruling said you couldn't block resale, not that you had to facilitate it.

    In that regard, as long as they tell you it's bound to the console on sale (for now at least), I'm not sure that counts as blocking, but it's certainly open to interpretation. I'd have thought Microsoft would be on shakier ground with their stance on selling accounts, where they actively ban accounts that are sold. Given software is attached to those accounts, that could also be interpreted as blocking. At the same time, that's open to interpretation too as it's the account itself you're selling rather than any single piece of software.

    Don't get me wrong, it's still time Nintendo got with the times and made it so you can transfer your own account to a different system. Why make you sign up for an account with a username and password without some way to move your purchases? But even then, you'd just be making it like Live and PSN. Their reply would still cover thatm and I don't think it would make any difference.

    As I see it, none of the 3 services specifically block the resale of a specific piece of software, they just don't actively provide a system to transfer a single licence. Same with Steam. Nintendo are admittedly worse because they don't even let you move the whole account to another system, but if you're going for a legal action based on that, at best you'd push them to make accounts movable. If you count locking purchases to an account as blocking resale, that's still not enough.
  • DFawkes Friendliest Forumite, 2016 27 May 2013 11:17:14 32,229 posts
    Seen 2 hours ago
    Registered 14 years ago
    As I said, it's open to debate, which is the main problem with any legal action. I'd love to see it challenged in court to give the ruling a real challenge that'd force definitions to be firmed up, but until then it's just far too open, giving no fixed right or "rubbish" answer.

    Indeed, the specifics of the judgement itself would suggest that it was more to do with the fact that, in that case, the software distributor was asking for money from the second hand purchaser. This is the specific case that was deemed wrong. They put a system in place for allowing a second hand user to download it, but charged for this.

    So, going to the letter of the first part of the ruling, as long as there isn't a mechanism in place for a second hand user to download it, you're alright. As I keep saying though, it's open to interpretation.
  • mal 27 May 2013 11:41:48 29,326 posts
    Seen 1 year ago
    Registered 17 years ago
    DFawkes wrote:
    As has been said, the ruling said you couldn't block resale, not that you had to facilitate it.
    That's not what Nintendo are claiming above. They're claiming you can block it (using TPM), but if you haven't blocked it you can't rely on the law to stop people transferring it, at least how I read it.

    As I see it, none of the 3 services specifically block the resale of a specific piece of software, they just don't actively provide a system to transfer a single licence. Same with Steam.
    Surely any DRM-based TPM which ties an installation to an account presents a block to transferring a game license, which it is illegal to circumvent? As I understand it, that's how all four systems work (although in Nintendo's case, the account is the hardware, and the club nintendo login is neither here nor there)

    Edit: Hmm, I'm conflating the concepts of a software installation and a license to use that software. Seems to me that to legally use one you need the other, so any system which blocks the transfer of either blocks the other.

    Edited by mal at 11:47:37 27-05-2013
  • MatMan562 27 May 2013 11:41:50 3,467 posts
    Seen 55 minutes ago
    Registered 9 years ago
    Isn't it a case of having the right to be able to do it but not necessarily the means? So I could sell my entire Steam account with all the games associated with it and Valve wouldn't be able to stop me but that doesn't mean they have to let me sell individual games. That's how I interpreted it anyway.

    Personally, I don't really get the reasoning for why we should be able to in the first place.
  • mal 27 May 2013 11:50:34 29,326 posts
    Seen 1 year ago
    Registered 17 years ago
    MatMan562 wrote:
    Personally, I don't really get the reasoning for why we should be able to in the first place.
    Simply because we've always had the right to in the past, as protected by the state. No matter what the second page of almost any book says about not selling or lending it, as a private individual you're legally entitled to do so, for example. And we used to be able to do the same with computer games, at least until it was ruled illegal to circumvent any programs which were intended to stop you doing so.
  • MatMan562 27 May 2013 11:53:07 3,467 posts
    Seen 55 minutes ago
    Registered 9 years ago
    mal wrote:
    MatMan562 wrote:
    Personally, I don't really get the reasoning for why we should be able to in the first place.
    Simply because we've always had the right to in the past, as protected by the state. No matter what the second page of almost any book says about not selling or lending it, as a private individual you're legally entitled to do so, for example. And we used to be able to do the same with computer games, at least until it was ruled illegal to circumvent any programs which were intended to stop you doing so.
    Oh right, I never realised that was the case, I assumed it was always illegal when it came to digital content.
  • DFawkes Friendliest Forumite, 2016 27 May 2013 12:06:32 32,229 posts
    Seen 2 hours ago
    Registered 14 years ago
    The ruling itself is worth a read.

    Part 1, as I interpret it (and please share if you feel I'm way off) is that once you've bought a licence for a piece of software, you own that licence for that of software, as long as you knowingly bought that

    Part 2 seems to say that, if you wish to resell that licence, you can, and the person you're selling to becomes the owner of that licence. The first person loses that licence.

    Re-reading this, I certainly don't agree with Nintendo that games aren't software. As for Technical Protection Measures as described in the longer full text of the judgement, point 79 does say "it is permissible for the distributor – whether ‘classic’ or ‘digital’ – to make use of technical protective measures such as product keys". It doesn't say anything about locking that "key" to an account though, which is where the grey area is for me. Unless I've missed it of course, which is possible because there are just so, so many words ;)

    By all means though, please comb through those legal judgements and share your interpretations. I think it's be useful for as all to discuss this before we get all litigious. I do find it quite interesting :)

    Edited by DFawkes at 12:08:49 27-05-2013
  • RobTheBuilder 27 May 2013 12:25:16 6,976 posts
    Seen 24 hours ago
    Registered 15 years ago
    If anything the ruling to me should apply more to games (which have a relatively short term usagespan) than other software (which you expect to keep on a machine for its entire lifespan.
  • DFawkes Friendliest Forumite, 2016 27 May 2013 12:34:50 32,229 posts
    Seen 2 hours ago
    Registered 14 years ago
    I agree, games are more likely to be tradeable.

    The main thing about the services just now is that you do essentially buy a licence for a piece of software, but as a part of the sign-up process you agree that it's locked to an account. I'm not entirely sure on the legality of that.
Log in or register to reply

Sometimes posts may contain links to online retail stores. If you click on one and make a purchase we may receive a small commission. For more information, go here.