Proposal: a fair resale of digital games

This text is a citizen proposal, intended for advocacy. It has no normative value, but sketches what a balanced legal framework could be for the resale of digital games, a right that current case law refuses (see our report).

Why a law?

The digital revolution has transformed the way we acquire a game. Digital distribution brings accessibility, but it has removed a freedom that physical media guaranteed: that of reselling, lending or bequeathing what one has bought. Since the French courts have refused to recognise this right for digital goods (Cour de cassation, 23 October 2024), only a legislative change, ideally at the European level, can restore it. Here are the principles it could establish.

Article 1, Definition

A "digital game" means any video game distributed and acquired without physical media, through a digital platform. The licence of use acquired for consideration and for an indefinite duration is attached to the consumer who acquired it, who may dispose of it under the conditions below.

Article 2, Right of resale

Any consumer who has lawfully acquired a licence for a digital game, for an indefinite duration, has the right to resell it. The resale entails the extinction of the seller's right of use: the licence is transferred, not duplicated ("one licence, one holder at a time").

Article 3, Terms and remuneration of the author

Platforms make available a secure and traceable transfer mechanism. A share of the resale price may be paid back to the publisher and rights holders, in order to associate creation with this secondary market, something that the physical second-hand market does not allow today.

Article 4, Information and transparency

Before the purchase, the consumer is clearly informed of the nature of what they are acquiring (a licence and not ownership), of its duration, of whether or not it is resellable, and of the conditions for ending the service. This information conditions the validity of consent.

Article 5, Interplay with European law

This proposal falls within the continuation of Directive (EU) 2019/770 on digital content and of consumer law. It aims to extend to the digital realm the logic of exhaustion of rights, today recognised for physical media and, in part, for software (UsedSoft ruling).

Such a framework would benefit both parties: read why in our article on the advantages of resale for publishers themselves.