If we face facts, neither the German decision nor ReDigi bring us any legal surprises – in fact they’re pretty predictable given the legal landscapes on both sides of the Atlantic. Both blow digital exhaustion out the water for the time being. But call this guest Kat a dreamer, she’s still not so sure who will get the cream if this resale kerfuffle works its way up the court systems or legislature.
In short, the German Court reiterated that the CJEU in UsedSoft considered the Software Directive as lex specialis and because the more general InfoSoc Directive, applicable to downloadable eBooks and audiobooks, explicitly disallows resale of intangibles the CJEU’s reasoning cannot be transferred. Ultimately, the Court underlined that for precedential purposes, UsedSoft can only be used where the Software Directive applies; the reasoning is not applicable to other digital content.
|UsedSoft: You can resell all legally|
purchased software but can't get
your claws into a second-paw
“Given the lower price of an audiobook, or e-book compared to the physical work, the average customer will be satisfied with the use of the file for his own purposes only.”
To the present author, this can be read as a signal to publishers (note that in Germany publishers set eBook and audiobook prices by de facto extension of the print book law) that the price of eBooks has to be lower than for print books - only then will the average consumer be satisfied with the restricted use. It’s a predictable pity the Court doesn’t say what price point makes a satisfied customer, but perhaps this could be seen as a Court-mandated warning that publishers should not price as they would for the print market.
|It's a good idea to know thy enemy,|
but you thought you were
buying a book?
Nope, you're licensing an eBook.
Easy slip of the tongue, iTunes.
In a sense, the plea to permit exhaustion in this case is therefore more extensive than in both UsedSoft and ReDigi where the defendants used such technologies to bring digital exhaustion closer to the resale of physical goods; only one legally obtained copy could be resold, so the first sale channel was not completely eroded. The Court – and the parties - here seemed unaware of such technologies which are becoming a business priority for retailers and, in the view of this guest Kat, could be used influence the future legal landscape too. This is for two reasons – one innocent, and one not quite so.