Fleur Pellerin’s communication blunder on DRMs & the resale of video games

Fleur Pellerin’s communication blunder on DRMs & the resale of video games

Fleur Pellerin, Minister of Culture and Communications, has recently demonstrated communication can be a tricky exercise. Responding to a parliamentary question introduced by Deputy Alain Rodet in October 2013, who denounced the widespread use on video games of Digital Rights Management (DRM), a set of access control technologies (including copyright protection technologies) intended to regulate the use of digital content and devices, she appeared far from being up to the job. Rodet criticized particularly the DRM activation systems, which require players to have an Internet connection and to establish a unique account in order to prevent any kind of sharing of their copy, considering the prohibition of selling games on the used market at the disadvantage of the gamers and video game reselling shops. In a broader context, DRM is subject to debate since many years as its efficiency divides those who argue it prevents from illegal copying and piracy and those stating the opposite.

Most recently, on August 11th and thus not earlier than two years later, Minister Pellerin or her cabinet responded to Rodet by confirming Digital Rights Management (DRM) applies to the resale of video games because it prevents illegal copying. Indeed, she claimed unequivocally her opposition to the sale of used games, equating according to her to piracy.

Soon after that, on August 14th, to everyone’s surprise, she seemed to back-pedal by publishing a message on Twitter according to which she never intended to prohibit the resale of video games.

These obviously contradictory statements made one after the other cannot be interpreted otherwise than as a communication mistake, mostly because Minister Pellerin doesn’t explain the eventual correlation between DRM and the resale of video games. Why? The answer might be: because imposing DRM as a means of preventing the sale of used video games is illegal.

The Court of Justice of the European Union was given an opportunity in the 2012 UsedSoft v. Oracle case to clarify EU directive 2009/24 and mostly article 4(2) claiming that: “The first sale in the Community of a copy of a program by the right-holder (…) shall exhaust the distribution right within the Community of that copy, with the exception of the right to control further rental of the program or a copy thereof.”

The Court ruled in the Oracle case that article 4(2) (…) of Directive 2009/24 must be interpreted as that: “in the event of the resale of a user license entailing the resale of a copy of a computer program downloaded from the copyright holder’s website, (…), the second acquirer (…) as well as any subsequent acquirer(…) will be able to rely on the exhaustion of the distribution(…) and hence be regarded as lawful acquirer of a copy of a computer program (…).” The case-law further specifies that the principle of exhaustion of the distribution right applies not only by means of downloading software from the website, but applies also when the software is copied on a material medium like CD-ROM or DVD. In other words, and to be very clear, the Court of Justice specifies that it is fully legal to resell a computer program or video game, by extension on a DVD or CD, which does not mean it is legal to make personal copies of the above-mentioned materials in order to resell them.

In consideration of European case-law, and no matter how much Fleur Pellerin wants to seduce copyright holders, her claims in order to support DRM to prevent the resell of computer games are above everything simply and strictly illegal.
By finally reconsidering her position on this matter she got herself and her cabinet out of illegitimate claims, but she still has not explained how her Ministry is willing to articulate DRM with video game resales and raises a big question mark to every gamer and more widely to the entire industry.

Not acknowledging an eventual communication mistake does not make the ambiguous appear less ambiguous. On the contrary, it is time Fleur Pellerin takes her responsibilities and makes a clear and unequivocal statement on this matter. Until then, if you are concerned about this, I would say: keep calm and enjoy reselling video games.