The Paris Court of Appeal closes the door on resale of digital games

On 21 October 2022, the Paris Court of Appeal handed down a decisive ruling in the case pitting UFC-Que Choisir against Valve (Steam): it overturned the 2019 judgment that had granted players a right to resell their digital games. Here is what you need to understand.

The heart of the problem: exhaustion of rights

The "exhaustion of rights" rule holds that once a copy of a work has been sold within the European Union with the rights holder's consent, that holder can no longer object to its resale. This is what allows you to resell a game on disc, a book or a CD, whatever the licence agreement may say.

The question was: does this rule apply to downloading? In 2012, the Court of Justice of the European Union (CJEU) had answered yes for software (the UsedSoft v Oracle ruling): a perpetual licence for downloaded software can be resold. The Paris TGI relied on this logic in 2019.

The distinction adopted by the Court of Appeal

The Court of Appeal set aside this reasoning. Its argument: a video game cannot be reduced to mere software. It is a complex work, code, but also images, music, storyline and characters, protected by copyright under the "InfoSoc" directive (2001/29). Now, for this type of work, the CJEU ruled in 2019 (the Tom Kabinet ruling, on digital books) that exhaustion does not apply to online transmission. Resale of the digital game is therefore refused.

The court also notes that the resale of digital copies, which are perfect and unlimited, would infringe copyright far more seriously than the resale of physical copies, which wear out and exist in finite numbers.

The epilogue: the Court of Cassation confirms (2024)

UFC-Que Choisir appealed to the Court of Cassation. On 23 October 2024, the Court of Cassation dismissed the appeal, confirming that digital games cannot be resold in France. The ruling (no. 23-13.738) is, however, unreported, not published in the bulletin, and therefore not established as a leading ruling, and the Court did not refer any preliminary question to the CJEU: the debate is not closed at the European level.

Even so, this position is not set in stone: it stems from the current state of the European directives. Change will come, if it comes, from the European legislator. See our analysis of the avenues of recourse.

Sources: Le Figaro (24 Oct. 2022) · UFC-Que Choisir · CJEU UsedSoft C-128/11 · CJEU Tom Kabinet C-263/18.

Official references

• Paris Court of Appeal, 21 October 2022
• Court of Cassation, 1st Civil Chamber, 23 October 2024, no. 23-13.738 (unreported, Légifrance)
• CJEU, UsedSoft v Oracle, 3 July 2012, C-128/11
• CJEU, Tom Kabinet, 19 December 2019, C-263/18
• CJEU, Nintendo v PC Box, 23 January 2014, C-355/12