AG Szpunar advises CJEU to rule that internet downloads of ebooks are covered by right of communication to the public, not distribution (so, no, there is no digital exhaustion under InfoSoc Directive)
Is it possible or not to create second-hand digital marketplaces for, say, audio and ebooks, digital music, games, etc? This is the question at the heart of the referral to the Court of Justice of the European Union (CJEU) in Tom Kabinet , C-263/18 [ here ] . As readers know, the CJEU has already found - in UsedSoft - that there is such thing as 'digital exhaustion' in relation to software under the Software Directive . However, that piece of legislation is both lex specialis and has a rather narrow field of application (for instance, it does not cover videogames, as the CJEU clarified in Nintendo ). Hence, in the aftermath of the UsedSoft ruling, it has remained unclear whether the same consequences envisaged in relation to the first lawful sale of the copy of a computer program could extend to subject matter protected under the InfoSoc Directive . Certain national courts have attemp...