Sign in / up

back to article EU ruling restricts rights to resell back-up copies of software where originals are damaged, destroyed or lost

Software companies must enable customers that acquire an unlimited licence to use their product to download a copy of that software to replace originals that have been damaged, destroyed or lost, the EU's highest court has ruled. The right to access a replacement for damaged, destroyed or lost software exists in this way under …

COMMENTS

Post your comment
House rules Send corrections
Add to 'My topics' unstar *
  1. Dan 55 Silver badge

    Um?

    If you can sell the original and licence on without the copyright holder's approval, why would you need their approval to sell the replacement and licence on?

    And can can you just sell the licence on and leave it to thr buyer to ask for the replacement?

    It seems to recognise that it's the licence that matters (after all, software publishers wouldn't have it any other way) yet at the same time tie the licence to media when it's not necessary.

    10 0 Reply
    1. Adam 52 Silver badge
      Reply Icon

      Re: Um?

      From the Court's perspective because that's what the law says. Just because the legislation doesn't make sense isn't the Court's concern, that's for legislators.

      Otherwise you'd have Andrew complaining about activist judges.

      The rules are simple:

      1. You can resell software without permission

      2. You can make a backup but *only* for your own use.

      So, absent any other legislation or agreement, you can't resell your backup.

      9 0 Reply
      1. Dan 55 Silver badge
        Reply Icon

        Re: Um?

        I was leaving backups out of it and talking about replacement media supplied by the copyright holder. It seems if you asked for a replacement you need permission from the copyright holder to sell it on. Why?

        But that raises a question - which law? Has Latvian law suddenly become EU law?

        1 1 Reply
        1. Anonymous Coward
          Reply Icon
          Anonymous Coward

          Re: Um?

          > But that raises a question - which law?

          The article has a link to the actual ruling, which provides the legal context.

          2 0 Reply
      2. Ogi
        Reply Icon

        Re: Um?

        >The rules are simple:

        >

        > 1. You can resell software without permission

        >

        > 2. You can make a backup but *only* for your own use.

        That doesn't seem right. The way I read it, you can buy software, make a backup for "your own use", then sell on the software. You are ok as long as the backup copy you made is only used by you.

        If true, sounds like a massive loophole, you can buy one license, make a backup, and then resell the original onwards in a chain.

        0 0 Reply
        1. PatientOne
          Reply Icon

          Re: Um?

          You buy a license to use the software.

          This seems to get missed all too often: It's a license you buy, not the software itself. So no, you can't sell or pass on the backup of the software, but you can sell or pass on your license to use it.

          All this is saying is that backups of the software are for personal use only and cannot be passed on. Certainly you can't sell it (as you can only sell the license).

          This also means that you can't buy the software, make a backup and sell the software while retaining the backup: Only the person with the license can use the software legally.

          3 0 Reply
      3. Anonymous Coward
        Reply Icon
        Anonymous Coward

        Re: Um?

        2. You can make a backup but *only* for your own use.

        And if the software has DRM???

        1 0 Reply
    2. kain preacher
      Reply Icon

      Re: Um?

      It's call a mechanical license, Only certain people are allowed to reproduce physical medium and they get a c ut. some people say they are the true owners.

      0 0 Reply
  2. Jason Bloomberg Silver badge

    What?

    It makes sense to me. One can sell-on the original, one can sell-on a downloaded replacement for a lost or damaged original, providing that software is then removed from the sellers system.

    The backup only exists with rights allowing it to be restored, thus it cannot be sold-on without obtaining additional rights to sell it.

    What the situation is with software restored from backup then being sold-on is not made clear in the article but I imagine the ruling covered that.

    It looks like this is a technical ruling relating to those having multiple backups and then trying to sell each and everyone of those on, claiming the defence of being legally able to do that. If the ruling were any different to how it is it would have perhaps legalised doing that. It therefore has to be how the ruling is to make it an offence.

    2 0 Reply
  3. nil0

    Self-destructing media

    So cue software companies using time-limited media; you'll be expected to make backup copies before the original media becomes unusable, and you'll never be able to sell the licence on.

    2 4 Reply
    1. AMBxx Silver badge
      Reply Icon

      Re: Self-destructing media

      Already here - high proportion of software now needs an online account to activate and continue to use.

      This might have been good 10 years ago, but rapidly becoming pointless - like insisting a replacement copy of VHS should be available to resell.

      2 0 Reply
      1. Anonymous Coward
        Reply Icon
        Anonymous Coward

        Re: Self-destructing media

        >Already here - high proportion of software now needs an online account to activate and continue to use.

        Also chuck into the mix that it's an annual subscription and not a perpetual licence, welcome to shafting as a service.

        12 0 Reply
        1. Toltec
          Reply Icon

          Re: Self-destructing media

          Given the rise of the robots taking manual work we are going to need to generate work for all of the new programmers coming on to the job markets.

          Until the AI gets better at writing software of course.

          Look at the upside, one day all of those media studies degrees will make sense.

          0 0 Reply
  4. Jess

    As long as the original software is available to download for the new user

    then there is no real problem.

    There should be a clause that permits it if, for some reason, the replacement is not available.

    (e.g. if the supplier no longer exists then permission to transfer backups is assumed.)

    0 0 Reply
    1. Roland6 Silver badge
      Reply Icon

      Re: As long as the original software is available to download for the new user

      Can't see MS being happy about this, remember all the fun and games with OEM reinstall media...

      Not only because it contained Windows but the disks were available after MS had stopped selling that particular version of Windows...

      0 0 Reply
  5. Charles 9

    Sounds OK to me.

    They're saying yes you can sell your originals and the license to go with them. No, you can't do the same with limited (copies). They can go back to the seller for fresh media (which the ruling says they MUST provide) THEN sell them on.

    2 0 Reply
  6. Chewi

    Games?

    I wonder if I can use this to convince Nintendo to replace a couple of my Wii U games. Their policy is that they will only replace within the warranty period. This sucks because the discs are easily damaged and surely cost pittance to replace. I wouldn't even mind paying a small token fee but I'll be damned if I'm going to fork out the full price again. It was probably my daughter who scratched the discs but she's as careful as you can expect a 5 year old to be.

    0 0 Reply
    1. Anonymous Coward
      Reply Icon
      Anonymous Coward

      Re: Games?

      Are these optical disks?

      Polish the scratches out with heatsink compound (the white stuff).

      Just be careful to protect the top surface while you are buffing.

      1 0 Reply
      1. Charles 9
        Reply Icon

        Re: Games?

        Eighth-generation consoles all use BluRays. Those discs have a hardened undercoat because the media layer can be pretty close to that undercoat. I've found that if something scratched hard enough to mar the undercoat, you're probably screwed already.

        0 0 Reply
      2. Chewi
        Reply Icon

        Re: Games?

        I tried this with toothpaste back in the PlayStation days but it didn't work. Still worth a shot, I suppose. To be honest, I can hardly see any scratches on the one game that doesn't get recognised at all but it seems to have a tiny dint that you could mistake for a speck of dirt. You can just about feel it and it doesn't go away when you wipe it. I ordered a lens cleaner that's only available from Japan but that didn't help. I even opened up the console (warranty has passed) to clean the lens but that didn't make any difference, good or bad.

        I still think console makers should do more to help here though I suppose this problem will be consigned to history before long.

        0 0 Reply
  7. Frank Bitterlich
    WTF?

    Did I read that right?

    Not sure if I got this right:

    1. An initial acquirer of software [...] can sell on the replacement copy that they download providing they "make any copy in his possession unusable at the time of its resale".

    ... but:

    2. [...] whilst the initial acquirer of software can make their own back up copy [...], they cannot resell the back up software [...].

    (My emphasis.)

    So, if you make a backup, you can not sell it; but if you download a replacement, you can sell it. Or did I misunderstand this?

    Huh?

    0 0 Reply
    1. Dan 55 Silver badge
      Reply Icon
      Paris Hilton

      Re: Did I read that right?

      No you didn't misunderstand.

      You must destroy backups in your possession on selling the software.

      You may sell licence + original media, without permission from the copyright holder.

      You may sell licence + replacement, with permission from the copyright holder.

      If the copyright holder makes a replacement to you available by download, there's no difference at all between backups and replacements apart from the name of the directory it's in on your hard drive or what you write on the DVD.

      There's some confusion up at the ECJ.

      0 1 Reply
      1. Frank Bitterlich
        Reply Icon

        Re: Did I read that right?

        The point I tried to make has nothing to do with destroying your own copy; it was about that if you make a "backup copy" yourself, you cannot sell that; but if you download a copy, then you can sell this downloaded copy. And that doesn't make sense.

        1 0 Reply
        1. Charles 9
          Reply Icon

          Re: Did I read that right?

          Put it this way. You can sell on an official copy (original media or an authorized download), NOT an unofficial copy (backup). Downloaded copies are assumed to be from digital distribution or so on, so a physical medium is not assumed, which is why this is allowed. Otherwise, you need your originals (or if they're screwed, a replacement set which the seller MUST provide for you). You sell this unofficial copy, you sell the license that goes with it, meaning any unofficial copies are void and must be erased/destroyed as per the license (this line of reasoning was what nailed Vernor of Vernor v. Autodesk on appeal--the copies he sold off had been voided because they were part of a lease agreement and were meant to be returned because an update had been delivered to the original client).

          0 0 Reply
  8. Anonymous Coward
    Anonymous Coward

    That headline

    ...is clickbait. Could equally have said "guarantees the right to obtain a new original copy when the first one is lost or damaged".

    But anyway, the interesting part is that the Directive does not actually define what a "back-up copy" is.

    From my point of view, any copies of an electronic file which are bit for bit equal to another are equally original. E.g., if I sign a file, any copy that passes signature verification is authentic, as far as I'm concerned. It is not clear what the difference between back-up and original may be here, especially when "material media" are not involved.

    1 0 Reply
  9. gc73

    Wide-ranging?

    Since the music and video industry are busy trying to convince everyone that buying a CD or DVD is a licence purchase and the media is irrelevant, does that mean they need to provide a downloadable replacement now?

    2 0 Reply
    1. Charles 9
      Reply Icon

      Re: Wide-ranging?

      Not if they offer to switch out your disc. The key element is being able to replace your original if necessary. Now, according to this, it's not illegal to rip and transcode your CD, but (1) it MUST stay with you, and (2) you STILL need to keep your original.

      0 0 Reply
  10. Milton

    Like a book

    On first reading I thought this was a bit odd, but if it means what I think it means then maybe it does make sense.

    Imagine it was a hardback novel you'd bought, not software. No one would object if you later resold your £20 book for a fiver. And if you had 'backed it up' by making a photocopy or a scan, and the hardback itself got lost or destroyed, it would be reasonable for you to read your backup. You already paid for the damn book, right? But not many people would say it is then ok for you to sell that backup, under any circumstances. In this case, I guess, the physical media is a kind of proxy for the principle of fair use and fair resale.

    5 0 Reply
  11. ratfox

    Easy

    Request a backup copy as soon as you buy the software, and use it. Keep the original in a safe.

    This is what soldiers do: they receive equipment, which they must prove on demand to be clean and well taken care of. They don't use it, buy their own which can be as dirty as they want.

    0 0 Reply
  12. David Neil

    Steam

    So according to this I should be able to sell on licenses for games in my Steam Library I no longer want to play?

    0 0 Reply
    1. Charles 9
      Reply Icon

      Re: Steam

      That would have to be tested in court, as Valve could counter their software is leased, not sold, or that the licenses they actually sell are non-transferable, which could potentially be upheld.

      0 0 Reply
  13. Steve Davies 3 Silver badge

    disks? How quaint...

    And there are a good number of bits of software that is not supplied on disk and there is no option to purchase a disk with it on.

    How does this ruling affect those products? Will the supplied be made to make the kit available for download again?

    1 0 Reply

POST COMMENT House rules

Not a member of The Register? Create a new account here.

Forgotten password ?

  • Enter your comment

  • Add an icon

Anonymous cowards cannot choose their icon

Other stories you might like