Used games; Ethicality and legality
I. THQ comments fuel debate about $10 DLC
THQ doesn’t care if you don’t like DLC (From Computer and Videogames)
Penny Arcade comic that ignited the debate
The Legal Satirycon takes Penny Arcade to task
Wired explains Used games: not a simple debate
Dubious Quality blog says its a dangerous game developers are playing
Why Punish the Customer? (Bitmob blog)
II. Used games debate; the new players… the new tactics
Best Buy expands trade-in program; here (Miami Herald), and here (Gamespot)…
Target expands buy-back program; here (CNBC), and here(Kotaku)…
The tactics and positions of the old players… Gamestop: Used doesn’t hurt new
Gamestop industry position; Gamestop: 75% from 5 retailers
Game industry general feeling… used games blamed for sales decline (1Up)
Fav quote: Sure, if you want to, you can call the guy who only buys used games a parasite, but what about the guy who sold his copy to get money to buy another new game? What do you call him?
Economic breakdown of used sales (World of Discourse)
FINALLY, in tactics… some of the “non-resale” tactics being used lately by game publisher…
EA skirts first sale doctrine with limits on resale Great article by Ars Technica to introduce the “first sale doctrine”…much more discussion in last section. Favorite quote; “While much of the buzz about Spore has revolved around the DRM and now the lawsuit, what’s important to remember is that the DRM isn’t in place just to “fight” pirates. No, the activation limit and the one-account system are also strong deterrents against selling your copy of the game; EA would much rather everyone bought it instead of taking part in a second-hand market.”
http://www.gamepolitics.com/2010/08/24/sony-looking-online-pass-solution-first-party-titles
Sony looking at Online Pass solutions
From the E-readers point of view
III. Peripheral legal issues involved
First sale doctrine (First of all, the case… though you may want to skip below to the discussion) http://ia311030.us.archive.org/2/items/gov.uscourts.wawd.145432/gov.uscourts.wawd.145432.71.0.pdf UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON TIMOTHY S. VERNOR, Plaintiff, v. AUTODESK, INC.,
Defendant. CASE NO. C07-1189RAJ ORDER
Verner vs AutoDesk (First Sale Doctrine) … extension to digital goods?
P. 14; line 2-8
For example, a person who buys a home is nonetheless restricted in his use and subsequent transfer of the home by property laws, zoning ordinances, and fair housing statutes. No one would characterize the person’s possession, however, as something other than ownership.
Similarly, the court cannot characterize Autodesk’s decision to let its licensees retain possession of the software forever as something other than a transfer of ownership, despite numerous restrictions on that ownership.
Enterprise Software bill of rights (Great discussion of a company’s effort to give customers some rights in software)
Because a first sale exhausts the copyright holder’s distribution right, future distributions of the copy do not implicate the Copyright Act. Opinion, p.7, citing United States v. Wise, 550 F.2d 1180, 1187 (9th Cir. 1977). A first sale does not, however, exhaust other rights, such as the copyright holder’s right to prohibit copying of the copy he sells. Id. For example, the first sale doctrine permits a consumer who buys a lawfully made DVD copy of “Gone With the Wind” to resell the copy, but not to duplicate the copy. Id.
http://www.pcworld.com/article/120767/consumer_watch_software_licensesfight_for_your_rights.html
Consumer Watch: Software Licenses – Fight for your Rights
http://williampatry.blogspot.com/2008/05/first-sale-victory-in-vernor.html
Vernor First Sale doctrine
http://www.joystiq.com/2008/10/17/lgj-first-sale-re-sale-everythings-on-sale/
Mark Mathenitis column
IV. My personal take on this
At the used bookstore where I frequently shop (more for the selection than the prices) there are often a row of new, sometimes collectible books marked; CASH ONLY, no trade-in credit. If a small privately-owned company can do that… certainly it is within the purview of larger publishers on their newest games to ask the same for their titles.
I think this is more a practical argument than a legal one; but I’m not one to take my gaming with a “heaping helping of guilt”. Readers; tell me what you think of this debate, or if there is possibly a legal argument that should prohibit the modern-day gamer from buying used instead of new? Or do you feel that this thrifty gamer is instead akin to piracy and putting publishers out of work by torpedoing the all-important sales figures?
Jay Moffitt is a Tennessee attorney. This blog is for entertainment and educational purposes only and does not consitute legal advice or create an attorney/client relationship. Jay Moffitt is not certified as a specialist in this area by Tennessee and Tennessee does not certify specialists in this practice area. All comments will be answered promptly and courteously as long as they are germane to the discussion and do not contain specific game names or incidents.
Tags: Best Buy, First sale doctrine, Gamestop, Sony, Target, THQ, Used games
What should the law be?
In general if the market can solve a problem it should be left to solve it without interference from the legislature. There is a very simple solution here – people who object to a company’s policy can spend their money elsewhere.
Generally gamers are terrible about practicising their principles because for most of us the principles are not all that important. I don’t like what Blizzard is doing but to not play Diablo 3??? I’m not that principled!
Unless the sale of these games is misleading there really is no reason to legislate against measures that reduce second hand sales. If it really matters the market will punish these innovations. If gamers suck it up and buy the games they object to they really don’t deserve the protection of legislation protecting them from an exploitation they would willingly accept.
Should we buy second hand?
Sure. It’s more of a minefield because it will become very possible to buy a game second hand which is too gutted to be fun to play.
If a loony says you are a pirate or a terrorist or a satanist for doing it, it doesn’t matter. Loonies object to all sorts of things – just about any action you can mention will have a corresponding loony out there somewhere who objects passionately. You can find them with Google
Life’s too short to worry about loonies.
THQ and PA? They’re not loonies, they’re just posturing. Publicity, hits and a good old fashioned flame war. Next month they’ll be stating that the Pope is the antichrist just to have another go. Good luck to them, they have a fun hobby.
jaymoffitt Reply:
September 1st, 2010 at 7:19 am
Love your comment. I’m glad you laid out the fact that for most gamers, (including yours truly), the corporate policy means zilch if the game is good. That’s why, I guess, you seem to have more of these inflammatory comments from video-game publishers than maybe any other industry. And I’m 100% for non-interference by government in game law unless there’s a major injustice.
Hope you and everyone else gets to read through some of the excellent supporting material about the law that marginally touches second-hand gaming purchases. The publishers will have us believe 100% in their way, much like with “click-to-agree” licenses and “you must accept this to use our website” licenses… (still under question). It’s important to remember that all the entities that developed big-time technological ground-breakers (player pianos, published books, jukeboxes, typewriters) have all tried to protect their “turf” and that these techniques and “idealogical debates” are not limited to this decade or even this century.