Tom Kabinet

Key takeaways

A Dutch website resold “second-hand” e-books. The Court of Justice stopped it in its tracks. Unlike software, an e-book falls under the Information Society copyright directive. Downloading it means receiving a communication to the public, and that right is never exhausted.

The Court added a decisive point: when an e-book contains some software, that software is merely an accessory. This is the reasoning the French Court of Cassation adopted in 2024 to hold that digital video games cannot be resold.

The site presented its service as a “reading club” where members resold their e-books. The Court relied on Directive 2001/29 and on the WIPO Copyright Treaty, which reserve exhaustion for tangible objects. It also put forward an economic argument: a digital copy does not wear out, and a second-hand market would compete directly with new copies, to the detriment of authors' remuneration.

The UsedSoft solution has not been abandoned, however: it remains valid for software, which is governed by a special directive. The whole difficulty, for video games, was knowing on which side they fall. The French Court of Cassation answered in 2024 in the Valve case.