Exhaustion-Harmonization by Case Law or the Clarification of a Long Standing Principle?

摘要

The principles and ideas inherent in the judgments of the triptych of cases have a strong place in the heart of the CJEU's thinking on the internal market as a whole and in that sense are not harmonization by stealth. However, their links to copyright are perilously nebulous which leaves them open to allegations of judicial expansionism (ironically because the problem is in fact lack of clarity and harmonization!). While this teleological approach may allow this line of reasoning to flourish within the case law of the CJEU itself, the use of devices such as the lex specicdis or reliance on doctrines that have complex and unclear provenance, will render the application of these cases in domestic law problematic, fracturing the practice of the Member states still further. This is particularly the case as the burden of determining the nature of the market situation has been left to national authorities who may be leery of these developments. Hints of this already have been seen in UsedSoft with many legal actors trying to limit its application. For example in the German case of Valve v. VZVB: In the reasons for judgement published now, the court makes it clear that the Steam service is not comparable to the situation that the ECJ had to assess in UsedSoft. In that case, a company purported to be selling only software licenses, which the ECJ permitted with its extensive application of the doctrine of exhaustion. But it also clearly stated that even this extensive interpretation did not apply to any services connected to the software, such as support or maintenance agreements. The Berlin judges consider the Steam service to contain a host of such additional services, such as matchmaking, provision of updates, and the operation of servers for the very multiplayer experience itself. The court even goes beyond this reasoning, which, by itself, would have been enough to dismiss vzbv's lawsuit. It also strongly hints that it does not consider the UsedSoft extension of the doctrine of exhaustion to intangible copies applicable to computer games at all. If the CJEU is to take copyright in this new direction then it must make its reasoning more transparent as this is the only way to avoid allegations of harmonization by stealth and bring national governments and courts on board with the development of the copyright/competition interface.