According to the web site for law firm Osborne Clarke, the results of the German court case against Valve for not allowing Steam accounts to be transferred or the ability to sell pre-owned Steam games are in. The German consumer advocacy group vzbv (Verbraucherzentrale Bundesverband) sued Valve over this a few years ago, but a 2012 ruling from the European Opinion concluded that the doctrine of exhaustion also applied to digitally distributed computer software. This inspired the group to try again, but the German court once again sided with Valve Software.
Law firm Osborne Clarke explains why the German court sided with Valve and if this ruling is at odds with Court of Justice of the European Union case law related to the issue:
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,
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.
Source: Blue's News