UsedSoft and the Big Bang Theory: Is the e-Exhaustion Meteor about to Strike?

Since the UsedSoft ruling of the CJEU in 2012, there has been the distinct feeling that – like the big bang - UsedSoft signals the start of a new beginning. As we enter this brave new world, the Copyright Directive will be read anew: misalignments in the treatment of physical and digital content will be resolved; accessibility and affordability for consumers will be heightened; and lock-in will be reduced as e-exhaustion takes hold. With UsedSoft as a precedent, the Court can do nothing but keep expanding its own ruling. For big bang theorists, it is only a matter of time until the digital first sale meteor strikes non-software downloads also. This paper looks at whether the UsedSoft ruling could indeed be the beginning of a wider doctrine of e-exhaustion, or if it is simply a one-shot comet restrained by provisions of the Computer Program Directive on which it was based. Fighting the latter corner, we have the strict word of the law; in the UsedSoft ruling, the Court appears to willingly bypass the international legal framework of the WCT. As far as expansion goes, the Copyright Directive was conceived specifically to implement the WCT, thus the legislative intent is clear. The Court would not, surely, invoke its modicum of creativity there also... With perhaps undue haste in a digital market of many unknowns, it seems this might well be the case. Provoking the big bang theory of e-exhaustion, the UsedSoft ruling can be read as distinctly purposive, but rather than having copyright norms in mind, the standard for the Court is the same free movement rules that underpin the exhaustion doctrine in the physical world. With an endowed sense of principled equivalence, the Court clearly wishes the tangible and intangible rules to be aligned. Against the backdrop of the European internal market, perhaps few legislative instruments would staunchly stand in its way. With firm objectives in mind, the UsedSoft ruling could be a rather disruptive meteor indeed.

What’s the Problem? Precarious Youth: Marginalisation, Criminalisation and Racialisation.

Since the nineteenth century invention of adolescence, young people have been consistently identified as social problems in western societies. Their contemporary status as a focus of fear and anxiety is, in that sense, nothing new. In this paper, I try to combine this sense of historical recurrence about the youth problem with some questions about what is different about the present – asking what is distinctive about the shape of the youth problem now? This is a difficult balance to strike, and what I have to say will probably lean more towards an emphasis on the historical conditions and routes of the youth problem. That balance reflects my own orientations and knowledge (I am not expert on the contemporary conditions of being young). But it also arises from my belief that much contemporary social science is profoundly forgetful. An enthusiasm for stressing the newness, or novelty, of the present connects many varieties of contemporary scholarship. One result is the construction of what Janet Fink and I have referred to as ‘sociological time’ in which