Virtual Secondary Markets: Are They Legally Sustainable?

The essay examines the legal sustainability of virtual secondary markets within the framework of European copyright law, with particular reference to the Court of Justice of the European Union’s ruling in Tom Kabinet. The author challenges the prevailing interpretation that this decision marks the definitive end of the exhaustion principle for digital works, instead proposing a more systemic and nuanced reading of the CJEU’s case law, including UsedSoft, FAPL, and VOB. The essay explores the balance between rightholders’ interests and the economic freedoms of users and competitors, highlighting how technological developments necessitate a re-evaluation of the exhaustion principle in relation to intangible goods. It argues that, under certain technical safeguards—such as the “one copy, one user” model—digital secondary markets may be compatible with EU law, thus offering a framework that reconciles the protection of intellectual property with the safeguarding of economic freedoms.