On October 23, 2024, the French Supreme Court (Cour de cassation) delivered a landmark decision on digital copyright law (docket no 23-13-738): Does the principle of exhaustion of distribution rights apply to video games distributed exclusively online, such as via platforms like Steam? The answer: No. This ruling has far-reaching implications for consumers, platform operators, and rights holders across Europe.
The case was initiated by the French consumer protection association UFC Que Choisir against Valve, the operator of the Steam online platform. At issue was a clause in Steam’s terms and conditions prohibiting the resale and transfer of digitally purchased games. UFC Que Choisir argued that this clause unlawfully restricted consumer rights and demanded its removal.
Key Points of the Decision:
- Complex Nature of Video Games: The court clarified that video games are “complex works,” consisting not only of software but also graphics, music, sound effects, characters, and scripts.
- No Exhaustion for Digital Distribution: While the CJEU’s UsedSoft decision allows for exhaustion in the case of computer programs distributed online, this does not apply to video games. Exhaustion under the Info Directive 2001/29/EC requires a physical medium. For purely digital distribution – as is standard on Steam – the exhaustion principle does not apply.
- Resale Ban Remains Valid: The clause prohibiting the resale and transfer of Steam games is therefore lawful. Consumers cannot resell digitally purchased games as they can with physical copies.
- Practical Relevance: The ruling provides legal certainty for platform operators and rights holders but limits consumer rights in the digital sphere. It confirms the CJEU’s established position that digital content is subject to different rules than physical goods.
The Cour de cassation’s decision is a milestone for digital copyright law in Europe. It confirms that the resale of digitally acquired video games on platforms like Steam remains excluded – a significant difference from the trade in physical media. For consumers, this means that a digitally purchased game cannot simply be resold. For the industry, however, the ruling brings much-needed clarity.