From Konstantin Ewald & Felix Hilgert of Osborne Clarke:
In short, if key selling gives you a headache, remedies are available. Feel free to get in touch, and we would be happy to help.
Another year, another gamescom… This time, one of the hot topics we discussed a lot in individual meetings and at the VGBA European Summit was publishers' fight against "key selling", so we thought we would share some additional resources on the legal aspects of this practice that has German publishers up in arms.
The debate was fuelled in part by a publication in Handelsblatt, one of Germany's leading business dailies. One of their correspondents, specialized in white collar crime, reported extensively on the many ways in which key sellers like MMOGA are violating the law. You can find the article in English here and in German (behind a paywall) here.
In the first landmark case in Germany to deal with key selling back in 2014, we were able to convince the Regional Court of Berlin that the common practice of buying boxed products, discarding the DVD and reselling the key only was in violation of copyright and trademark law. This decision, which has since been confirmed by other courts, is still the cornerstone of any legal strategy against key selling in Germany and beyond: Judgments are possible also against entities domiciled elsewhere, and enforcing them from within Germany, while not trivial, has proven a viable option. You can find a summary of the Berlin case in English here and in German here.
Finally, a recent decision by the German Federal Court of Justice has been flaunted by some as saying key selling is permitted after all. However, these commentators fail to take into account the very specific nature of video games, which are protected as "hybrid works" according to the case law of the CJEU, and that "usedSoft" principles do not apply to them. We dispel the myth in detail in a note available here.