I believe G2A would acknowledge that their legal status in the EU hangs on a particularly dogmatic interpretation of a single case.

As an example of how other distributors reacted to that judgement, I found this response from Nintendo to a customer in the UK:

We deeply appreciate that you have been a loyal consumer of Nintendo products for so many years. We take this as a sign that the quality of both Nintendo software and hardware has always met your expectations. This being said, we regret to hear that for the time being you do not intend to buy further games for the reasons pointed out in your email. We can assure you that we take your point very seriously. In your email, you claim that the current digital distribution of Nintendo is not in line with the recent decision of the Court of Justice of the European Union (CJEU) in UsedSoft v. Oracle (case no. C-128/11). Your reading of the judgment is that the principle of exhaustion is also applicable to Nintendo video games purchased in the eShop. Based on this assumption you conclude that it is not legally feasible to technically link the purchased games to your Nintendo account. We have carefully considered your arguments and the aforementioned decision of the CJEU. As a result of our analysis, we unfortunately cannot share your understanding of the judgment. In a nutshell, we would like to emphasise the following points: 1. The CJEU in UsedSoft only decided on a mere computer program but not on video games. A video game is a complex work which consists of multiple different elements in different work categories (audio-visual works like pictures, sounds, etc. as well as computer programs), i.e. a video game is a so-called multimedia work. Audio-visual works and computer programs are regulated under different legal regimes of copyright. The ruling of the CJEU only deals with computer programs. It does not follow from that decision that the first sale doctrine also applies to multimedia works. To the contrary, multimedia works have to be treated differently. 2. Even if the judgment was applicable to video games (which we think is not the case), the CJEU expressly allowed the distributors of computer programs to use Technical Protection Measures (TPM) such as product keys in order to avoid the uncontrolled passing of software from one user to another. The linking of software to the Nintendo account is such TPM. Hence, the current distribution policy of Nintendo is in line with the UsedSoft ruling of the CJEU. We hope that these qualities, which apparently have convinced you to purchase and use our products in the past, will convince you to remain a Nintendo customer. We do hope that this information is of benefit to you, we thank you for your kind attention and continued support. Kind regards, Nintendo UK

It appears that UsedSoft v. Oracle hasn’t swayed the big players in the games industry just yet.

The Indie Perspective

I asked around to find indie developers who were interested in sharing their feelings about key reselling. Here are some of the responses:

Megan Fox, Glass Bottom Games

I treat key reselling much as I do piracy — I don’t condone it, but I’m not going to waste a ton of time chasing it around and shutting it down. Would you go to one of the shady key reseller sites and trust them with your bank info? Because I sure wouldn’t. Which suggests that those going to the sites aren’t there by choice, but by having no other choice. I don’t think they have the luxury of thinking “will the dev get some of this,” they’re just thinking “I can afford to pay $5 on a game, no more, and OH MY GOD THEY HAVE THAT GAME I WANT!”. Piracy and key-reselling are both products of a global society with a purchasing power differential. It isn’t like there’s one evil moustache-twirling guy.

Caspian Prince, Puppy Games

For the past however many years, we’ve basically been seeing a vast number of retail activations compared to actual sales. Of course, we’ve been in numerous bundles… so we can imagine that a fairly large number of “bundle retail activations” would be taking place… but I’m wondering whether the length of that queue should be such that our retail activations consistently outweighs our Steam sales by some large factor (currently > 5:1) Here’s the last 12 months’ retail activations data: Titan Attacks (retail) 38,650 Revenge of the Titans (retail) 10,047 Titan Attacks we might reasonably guess should be fairly big numbers as it’s been featured in bundles this year but the one that really sticks out like a sore thumb is Humble Indie Bundle 2. That was five years ago. People don’t just “discover” stuff they bought five years ago in those kind of numbers. From our perspective, we made approximately $5000 from those Humble sales (probably a bit less) but now it looks more like we’re losing $55,000 in Steam sales as a result. Which is of course the difference between me carrying on in game development and getting a job as software development manager here at Seamap… which is what happened. In reality those keys are probably being sold by sites like G2A but for knockdown prices so we can’t really say we’re losing $55k in sales that way, probably some fairly smaller fraction of that like $20k. But then this is only one of our games… the other three are presumably going to keep selling via retail keys for years to come as well. Gah.

Anonymous Indie Developer

Basically, any of our games on Steam, for better or for worse, provide keys to users that allow them to use our non-Steam client if they wish. Turns out copies of one of our titles were getting bought on Steam and then refunded, while the non-Steam keys were being sold on G2A. Steam do provide us a list of these, which we can blacklist/deactivate for our non-Steam clients but by the time we had gotten round to doing the first batch, there were already around 7000 to be processed. Of course this includes actual refunds but there was a big chunk of players who received a very nasty shock. I was sent numerous messages from people asking why they couldn’t play multiplayer anymore. As I understand, our support received 100+ tickets on that issue within the week. We weren’t perfect in getting organised around this and probably could have reduced some of the damage done but it’s heartbreaking when there’s just nothing you can do and players who are doing us a service by keeping the game active have to be turned away. I guess a lot of them bought the game again but it really irks me that G2A profit from this business which is just negative to developers and players. Almost gave them a piece of my mind when I saw them at Gamescom and probably would have done if I wasn’t there with the company.

Ashton Raze, Owl Cave Games

Both of our games can be found on key reselling sites; Richard & Alice and The Charnel House Trilogy, as well as the R&A/CHT bundle, although the bundle is listed as ‘out of stock’. I don’t think we’ve ever actually generated Steam keys for the bundle so I’ve no idea why it’s listed. I’ve never communicated with any of them about our games. Honestly, I don’t have much of a problem with it. I’ve put those games out for sale (or distributed the keys), an action I was happy with, and I’m kind of okay with them being treated as things that can be resold. Don’t get me wrong, I get that it’s better if people don’t buy through key resellers, and I’d encourage any of our potential customers to buy through approved channels (even if it means waiting for a sale), but I also don’t feel like it’s my place to tell people they can’t resell a key they’ve bought. If someone does buy from a key reseller, then I’d want to encourage them (through the quality of our games and developer/customer relations) to be there day one the next time we release a game, buying from one of our approved sellers instead of a key reseller. But! Of all the things to expend energy on, I’ve come to feel that with key reselling, there’s a chance it might bring new audience members in.

Cliff Harris, Positech Games

I think it’s ultimately destructive to the relationship between developers and budget-conscious gamers because it takes away our ability to control the duration of time limited sales, ultimately meaning it becomes a bad idea for us to discount our games and give people on smaller budgets the chance to enjoy our work. It’s also distressing to see your game apparently being sold in a store over which you have no control, no relationship, no contact, and no influence at all. How do I know my game isn’t being bundled with stuff I strongly disagree with, for example?

Kent Hudson, Developer of ‘The Novelist’

My feelings are complicated. On one hand, I have put my game into two Humble Bundles and participated in Steam seasonal sales, which means that a huge number of Steam keys were legitimately sold at a low per-unit cost. When I see the game on sale for a low price on reseller sites, I am assuming that the keys were purchased legally at a steep discount and that the sites are just playing the market in a straightforward “buy low, sell high” kind of way. In a free market, they have a commodity that they acquired at a discount and want to sell for a profit. To be clear, my perspective would be completely different if the keys on these sites were acquired via shadier methods like hacking or theft. But for the purposes of this answer I’m operating under the assumption that they are buying keys during steep discounts (Humble Bundles, Steam Midweek Madness, etc.) and reselling them later for a profit. That said, even if the keys were acquired through legitimate purchasing, I can’t help but have a visceral reaction to the fact that I poured my soul into that game for almost two years, and now some strangers somewhere are trading it without my permission or approval to make a few pennies. I know that isn’t entirely rational; in the cold light of day I know that I put a lot of keys into the market at a low price. I did that, like so many other developers, because that’s how the indie market works these days. But the contract I feel I entered into as a developer is one in which I sell my game to people who care about it…So despite the logical economic aspects of key reselling, it still feels gross to see something you put so much of your creative life into turned into a commodity bought and sold by third parties solely so they can turn a profit without adding any creative value whatsoever. While I acknowledge that I put Steam keys into the market at a low price, I did that in hopes of reaching more people and connecting with them through my work, hoping to provide them with a meaningful and worthwhile experience. I suppose that’s the crux of it: it feels like an honest and legitimate exchange has been turned into something very crass without my permission. The prevalence of key reselling highlights how the constant discounts and promotions in the current marketplace have really driven down the perceived value of games. Key reselling is a byproduct of a more central issue, and for our next game I want to look at ways to protect the value of our work more.

Lewie Procter, SavyGamer

Lewie is the proprietor of excellent discount hunting site SavyGamer. He wrote this blog post in 2014 as a response to his readers asking him about his beliefs on the key reselling issue.

“No one forced developers to flood the market with cheap serials for their games, that was an action they voluntarily engaged in. Perhaps they might not have fully thought through the consequences of doing this; whilst I have sympathy for any developer who feels unhappy about this situation, they should be examining how their actions have led to it before pointing fingers at anyone else.”

I felt this was a reasonably creative attempt to place the blame on the victim. The digital game market is such that discount sales are the main way in which developers make money, so failing to engage in them would be commercial suicide.

Lewie followed up with me on that:

My intent is not to victim blame, I’m arguing that if you choose to engage in capitalism by making a game and then selling it, you are opting to play by the rules of capitalism. Arbitrage occurs in all other markets, and I don’t feel that digitally distributed games should be exempt.

At the time, we were discussing his view of key reselling as a “grey area”, when I took the viewpoint, expressed by Sheridans, that it was demonstrably illegal in the EU. I suggested that it was inconsistent for SavyGamer to link to key resellers when it did not link to piracy sites. He responded:

If you genuinely think that the actions of Fast2Play are illegal, then perhaps prove it in court. Up until that point, in my mind they are innocent until proven guilty. This is the same affordance I would offer any retailer. I can’t just remove a deal from SavyGamer on the basis of an unproven allegation.

Keys to the Kingdom

Like most developers, I reacted strongly against reselling when I first encountered it. It’s important to nuance your opinion over time and listen to other arguments, however.

I absolutely understand the desire to resell games. In an ideal world, there would be no regional price differences, no huge launch costs for AAA games, no need to wait for Humble Bundles and so on. Whether or not you believe these things are necessary or inevitable, a desire to exploit the arbitrage they create is a part of any economy.

One of the reasons that we at Mode 7 do pay-what-you-want promotions for our games is to allow them to reach customers who can’t afford launch prices. Humble Bundle has been brilliant in facilitating this. We understand that not everyone is able to pay full price for a game; a strong argument for resale is that it enables those customers to take part in the market. It is vital that developers account for this.

However, given that there are now legal options which benefit all parties, the argument that key reselling is the only way for some people to access the market seems problematic. With AAA games, that may well be the case, but indie titles are usually available at a range of prices relatively soon after launch.

Personally, I dislike the ridiculous nature of EULA’s, the means by which reselling is explicitly prohibited: I wish we could abandon them entirely and go for something clearer so that customers can actually understand. I also don’t think that mass key deactivation after the event is an acceptable response. As one G2A customer put it on a Ubisoft forum:

“I have bought it from a trusted retailer and you have no right to deactivate it because I payed money for it! “ (sic)

Punishing someone who doesn’t understand what they’ve done is rarely effective: this needs to be addressed in other ways, either at the original point of sale or through more effective education. The last thing that the industry should do, as with piracy, is to over-react and start hurting legitimate customers with byzantine copy protection or legal action.

While my opinion on resale in general is somewhat complicated, I have a much clearer view of its current practical implementation. The perceived ambiguity around the issue is being vigorously exploited by resellers and nobody really benefits apart from those taking advantage of it.

My general impression of G2A’s stance is one of trying to move beyond the perception that they are a “shady reseller” and into legitimacy: they say that they now want to reach out to developers. Global Head of Public Relations Jacqueline Purcell described her belief in “innovation before legislation”: G2A want to convey that they are changing the market rather than violating it.

I believe that if resellers truly want to become a legitimate part of the marketplace then they need to work hard to repair the significant damage that has been done by taking developer’s games without consent. Giving developers a cut of revenue is something which could change this.

Also, the existence of an unambiguous legal situation would trigger big distribution players, like Valve, Humble and the console platform holders to respond by permitting resale themselves. It would be out in the open. G2A have never, to my knowledge, discussed their specific legal position in public before: I hope this opens it up to debate.

Until reselling sites grew their userbase significantly in the past couple of years, there was no reasonable expectation that large-scale exploitation of the market was taking place; devs simply didn’t know it was happening and so couldn’t plan around it. Developers who took part in deep discounted sales or bundles long before the emergence of reselling could not possibly have predicted the extent to which its popularity would grow.

Currently, everyone is losing out: customers have to take the risk of using sites with very few guarantees about the product they’re buying; developers receive no payment; sellers are forced into a specific and controversial legal position without their awareness.

If key resellers are “pro-gamer” and “pro customer”, it seems odd they are compelling gamers to take on legal risk and then profiting from that. As you can see from the responses above, it’s clear that the legal onus is on the customer: the customer must decide what they think of the EULA and then they take on the risk of violating it, both as seller and purchaser.

The character of the market shouldn’t be altered by companies profiting from this sort of misdirection and exploiting the limited resources of developers. This is different from MP3-sharing or piracy which were largely consumer-driven phenomena: it’s motivated entirely by profit.

If we are going to change to a system where reselling is permitted; developers will need some time to adjust. While we’ve seen positive signs from distributors like Green Man Gaming, there is no meaningful way to predict what would happen if that were to be scaled up. Retail used game sales don’t provide a good indicator: it is so radically different from the digital marketplace that attempting to use it as a data point is fatuous.

It should currently be possible for developers to exercise our rights and easily opt out of having our games listed on sites like G2A. This would be a situation which works for everyone: it would mean that individual devs could make the choice themselves and their customers could take it up with them if resale was a necessary option when purchasing a game. There would be communication and fairness: I don’t accept that G2A’s offer to accept formal takedowns for specific reasons is sufficient here; it seems like a shield against litigation rather than an attempt to reach out. They still maintain that their store is legal and absolutely refuse to delist games on the basis that sales violate the EULA’s of other distributors.

Some developers are keen for major distributors to switch to time-limited keys in order to prevent reselling. I feel like this would be disappointing, as it’s effectively anti-customer: it’s nice to have gift copies of games hanging around to be discovered later; it would also be good to avoid issues where people forget to register a game and then lose it later on. The absolute last thing I would want to do would be to introduce annoying secondary constraints to try and stop this practise; in all this we should still be putting the customer first.

In fact, I’ve resisted writing a piece like this for a long time because, ultimately, we need to listen to what customers are saying rather than try and clamp down on illegal behaviour post-hoc. I’d love to focus more on things like the number of people who have bought my music after pirating it because they wanted to support me. I have been very open to anyone streaming or using my music for profit on Twitch or YouTube, providing that they give me a link or a credit, for example, despite the fact that prior to me making those declarations, the practise was technically illegal. I see these as positive market developments — things which benefit both producers and consumers — I wouldn’t want anyone to think that we are simply arbitrarily against any changes in the way digital content is sold and consumed.

Resale could be an enormous change for the games industry. I’m heartened by G2A‘s assertion that they want to work more with developers: to avoid seeming disingenuous, they must now back their words with actions. I thank them for their open and in-depth participation in this article; they were keen to stress that they are happy to discuss these issues with any developers who wish to contact them directly.

I hope that this is a small step towards a real conversation that can lead to a fair and healthy marketplace for indie games.

Thanks to Alex Hayes for his proofreading assistance.