With its decision (Docket no. 23 U 42/14), the full reasons of which have yet to be published, the Court confirmed the decision of the previous instance that we reported on here. Germany’s highest civil court, the Federal Court of Justice (Bundesgerichtshof; “BGH”), also had to decide a similar case in the past and declared the clause in question to be effective as well.
The renewed attempt of the German consumer watchdogs is likely due to the European Court of Justice’s well-known UsedSoft decision. The CJEU had ruled in 2012 that under certain circumstances, rights owners cannot prohibit buyers of digitally distributed computer software to re-sell their copy of the software, thus applying the doctrine of exhaustion, traditionally only applicable to physical copies of works, to intangible copies of software.
However, Federal Court of Justice had already taken this into consideration in its previous decision, stating that the right of ownership protected by copyright did not oblige providers to also make their user accounts transferable.
The Court in Berlin seems to follow a slightly different – or supplementary – reasoning. Users on Steam effectively did not “purchase” a game, because the software could never be used without limitation but only as a part of the (other) services provided through the platform.
This reasoning is compelling, as the service of Valve for its customers is not limited to making games available for download. Steam serves as a multiplayer and communication platform and makes it possible to automatically install bug fixes and other updates.
For games that are distributed by way of digital download only, the Court could have reached this (correct) decision in an even simpler way: After the decision of the CJEU in the PC Box case, it is now clear that the doctrine of “digital exhaustion” does not apply when downloading computer games (contrary to regular application software).
However, this “shortcut” does not apply to constellations in which the game contents are delivered on DVDs and subsequently added to a Steam account. We are curious if and what the Higher Regional Court of Berlin has to say on this issue when the grounds for the decision are released – watch this space for updates!