The end of game resales?
There’s a lot of heady legal concepts in this article, and I admit that I haven’t yet re-read it in order to absorb it fully. But if I understand it correctly, it would appear that the US 9th Circuit Court of Appeals has come perilously close to striking a death blow to the concept of used game sales:
The first-sale doctrine was added to the Copyright Act of 1976 after being introduced in case law in 1908. In short, the doctrine lets you, as the purchaser of a legal copy of a book, movie, game, or other copyrighted work, resell or give away that legal copy to subsequent owners without permission from the copyright holder. It doesn’t give you any rights to the work protected by the copyright, or the ability to otherwise violate the copyright by making copies of the work; it only removes the copyright holder’s control over legal, physical copies of the work after they are first sold to a consumer. In other words, GameStop’s business owes everything to this doctrine.
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In short, copyrighted material that is licensed to an end user is exempt from the first-sale doctrine, and the license agreement controls what the licensee (the consumer) can and can’t do with the product. As pretty much every PC or Mac game comes with an End User License Agreement, there has been a long standing argument between whether or not those titles are subject to the first-sale doctrine, just as other licensed software would be. Console games, on the other hand, have been viewed more like music and movies, which have always been considered sold and subject to first sale for home use.
While past cases haven’t been perhaps as clear cut on software, the [Vernor v. Autodesk] decision is relatively unequivocal: The software was licensed and was therefore not subject to the first-sale doctrine.
I don’t have the specifics of the Autodesk case in front of me, but at a first glance it would seem that this ruling makes it…legally difficult to resell games, since it arguably interprets the EULA that most games ship with as evidence that no legitimate “first sale” of the software ever occurred (to license a piece of software is, technically, not to buy it outright, but is instead to pay a fee in order to enjoy specifically limited use of the software even while the creator retains a measure of ownership over it).
Troublesome.
What’s troublesome is how deeply corporations and individuals attempt to push the statutes of the law in order to secure near totalitarian control over what they perceive as their property.
Fortunately we have things like public outrage/backlash and cowardly politicians to keep things somewhat sane. I suspect this ruling will be overturned by a higher court if the parties involved attempt to disrupt the status quo of the game reselling market or otherwise inconvenience voters.
I think what it comes down to is the idea that by signing something all your rights may be distilled to whatever the document writer has in store for you. Basically the same principle that disallows a citizen from signing themselves into slavery. While a EULA is all well and good, it doesn’t mean you sacrifice your constitutional rights by agreeing to it, whether passively or actively.
The separation of physical media from IP is important in this case, as it allows someone to sell a CD/game/whatever without implying that the seller somehow owns or is transferring the IP or that the buyer is subject to the EULA. They have to click “I Agree” to be bound by the spell, anyway. 😉
All the more argument for subscription-based or open source games. Side-step the nonsense.
Did this have anything to do with Good Old Games closing down?
@Sslaxx: as far as I know, no. It would seem that CD Prjoekt has something in the works.
@Kevin: I’d agree that the ruling probably wouldn’t stand up to a challenge in a higher court, if such a challenge is filed. And in general, I agree with the assessment, especially given some recent examples I’ve seen of rather…absurd EULAs (I’m looking at you, Pixelpipe) that rather blatantly throw the rights of the consumer to the dogs.
I’m not unsympathetic to the desire by publishers to limit piracy, mind you, and I’d be kidding myself to think that this ruling didn’t have something to do with that as well. I don’t know if that’s a problem for XBox games, though certainly for PC games it’s an issue.
Not that I think this ruling is a reasonable anti-piracy measure, of course.