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First sale litigation in Germany

From: Alexander Terekhov
Subject: First sale litigation in Germany
Date: Wed, 08 Dec 2010 16:01:26 -0000

There is a ruling from the BGH (third level court which is akin to
SCOTUS apart from constitutional matters) regarding first sale aka
exhaustion doctrine.

Consumer rights protection group sued the maker of asking the court forbid to
suggest in a shrink-wrap EULA that online accounts created with one-time
key (the key comes with a copy of software/game) can not be sold by game
copy owner.

Once you buy a copy of Half Life 2 software and create an online account
your copy becomes pretty much worthless regarding resale if potential
buyer can not reuse the online account you created because the key is
not valid any more to create another account.

Consumer rights protection group argued that it violates the doctrine of
first sale and hence shall be forbidden.

The publisher argued that a copy of game software is more like a ticket
for a show which can not be "reused" once the show is over.

Consumer rights protection group lost on two levels and appealed to the
highest court (the BGH).

The BGH ruled that publisher's practice does not violate first sale
because copies can be resold and suggestion that a copy may become
worthless for resale (after the creation of online account) is
irrelevant. The court explicitly didn't rule on contractual
enforceability of online account resale restriction.

Here is the ruling:


(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)

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