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Used Games: The Law is Not in Your Favour

PLAYERTWOBANNER

When Kotaku posted the first ever details of Sony’s next console last week, no-one was talking about the machine’s specifications.

Aside from the title reveal, the site’s unnamed source revealed other information that sent readers around the globe in to a frenzy.

The most controversial detail included was the possibility of a restriction on used games, where Blu-Rays would tie themselves to your PSN account on first use.

With the next Xbox (working title ‘Durango’) rumoured to do something similar, much of the internet’s console gaming community has all but set itself on fire in indignation.

If used games locked like this, saying it would affect a lot of people is an understatement.

Preowned-centric stores like Gamestop take a two-thirds sales hit, game rental can be considered largely over, and borrowing games from your friends becomes only a fond memory…

So maybe I’m exaggerating – but it’s understandable that a lot of people are upset.

Some smart cookies are even questioning the legality of such a restriction, bringing up first-sale doctrine.

Also known as the right of first sale, this is the customer’s express right to sell, lend or give away any copyrighted material they legally purchase.

It was first recognised by the United States Supreme Court in 1909.

While it stands relatively unchallenged in other media, recent developments have shown that it’s far from omnipotent in software matters.
phoenix wright objection Used Games: The Law is Not in Your Favour

Specifically, back in 2007, developer Autodesk went to court with an eBay user over his attempt to sell a still-packaged copy of their AutoCAD software.

Autodesk originally contacted eBay to have the item taken down, stating that the sale was in breach of the end user license agreement (EULA), which dictates that the software may not be resold.

The takedown notices were issued under the Digital Milennium Copyright Act (DMCA), which is generally the go-to piece of legislation for software copyright protection.

Interestingly, it was also employed by Sony in a case last year against a PS3 jailbreaker named George Hotz – though more on that later.

In response Autodesk’s takedowns, the seller, Timothy Vernor, continued to put the item back up for sale.

Autodesk in turn continued to issue complaints to eBay until eventually Vernor’s account was suspended.

Vernor took Autodesk to court, seeking a legal declaration that his sales were legal under first-sale doctrine, and seeking an injunction to prevent Autodesk from further interfering with what he believed was legitimate business.

He won, and all was well in the land of videogames.

Next year, Autodesk appealed the decision, and it was overturned in its favour by the Ninth Circuit Court of Appeals.

This time, the court deemed that Vernor did not have ownership (and thus right of first sale) of the copy of AutoCAD he was trying to sell, but only a license to it.

That’s right – legally, you don’t even own the games you buy.

Even today, selling a used copy of Red Dead Redemption could land you with a DMCA notice from Take Two if they had the time and energy to send you one.

Red Dead’s EULA reads as follows.[quote]

THIS SOFTWARE IS LICENSED, NOT SOLD.

You agree not to:

(a) Commercially exploit the software; (b) Distribute, lease, sell, rent or otherwise transfer the software, or any copies of the software, without the express consent of the licensor.

[/quote]The fact is, if you decided today that you wanted to try out Rockstar’s spaghetti western classic, realistically you’re going to have a far better chance at finding it preowned in stores.

The less-mentioned function of used game distribution is that it preserves older titles – and thus the history of the medium – by keeping them in circulation.

At present, new games don’t realistically stick around for that long on shelves after release; fresh titles come in and take their place continuously.

With used games out of the equation, older games may become that much harder to find.

Why… you might just have to buy them on the PSN or XBL.

Wouldn’t that be convenient for our manufacturer friends.

This is a source of income that Sony at least has shown it will take great measures to protect.

Orwellian DMCA Used Games: The Law is Not in Your Favour

 

Sony removed backwards compatibility from the PS3 after the launch model, arguably when it realised that there was money to be made from selling digital versions of PS2 titles.

The aforementioned jailbreaker that ended up in court with Sony, George Hotz, was primarily seeking to restore backwards compatability to the PS3 to circumvent this.

I must say, I had hoped originally hoped that Sony would go for the ‘people’s choice’ response to rumours that Durango would be blocking used games, and counter by offering gamers a restriction-free environment.

Infamous gaming wizard and financial analyst Michael Pachter suggested that it may be a viable option in an interview with GameIndustry.biz last week.

“… if one does it and the others don’t, the one who does will see a loss of market share,” he said about the potential used-games block.

Not to assume that I know better, but after reading this interview with Denis Dyack of Silicon Knights I feel I may understand a bit better.

If used game trading is eliminated from the market, publishers are able to secure a bigger chunk of the revenue that their games generate, particularly over time.

Publishers are naturally going to flock to the manufacturer that supports their interests.

The decision not to play ball could have cost Sony the support of a number of vital publishers, who could feel that their interests are being better represented elsewhere.

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SOURCES:

Original announcement (Kotaku): http://kotaku.com/5896996/the-next-playstation-is-called-orbis-sources-say-here-are-the-details

New Xbox’s non-support of used games (TomsGuide): http://www.tomsguide.com/us/Wii-U-Xbox-720-Oban-Radeon-Performance,news-13994.html

First-sale doctrine (Wikipedia): http://en.wikipedia.org/wiki/First_sale_doctrine

Vernor vs. Autodesk case (Wikipedia): http://en.wikipedia.org/wiki/Vernor_v._Autodesk,_Inc.

Gaming implications of Vernor vs. Autodesk (Wired): http://www.wired.com/threatlevel/2010/09/first-sale-doctrine/

Red Dead Redemption EULA explanation (GameSpot): http://au.gamespot.com/news/court-ruling-could-affect-pre-owned-game-sales-6275683

Pachter interview (GamesIndustry.biz): http://www.gamesindustry.biz/articles/2012-03-28-gamestop-could-refuse-to-stock-playstation-orbis-says-pachter

Silicon Knights interview (Kotaku): http://www.kotaku.com/silicon-knights/

IMAGES:

“Objection!”: http://eightarc.com/wordpress/wp-content/uploads/2011/10/phoenix-wright-objection.jpg

Animal Farm/DMCA parody: http://www.saltydroid.info/wp-content/uploads/2009/07/Orwellian-DMCA.jpg

 

 

 

Lachlan is the resident Australian columnist here. He technically runs the column 'Player Two' , but mostly writes about whatever's bothering him at the time. He also wishes someone would speak Japanese with him.
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