A response to Azuriel
Posted by Tobold's Blog [HTML][XML][PERM][FULL] on 3 June 2013, 10:44 am
First of all, it's "et al." (note the point after "al.", because that is an abbreviation of alii, but et is a full word), and not "et tal".

Second, I accept (without necessarily agreeing) your arguments in defense of used games. But I think you are wrong in your prediction of a change of law that will force game companies to facilitate the sales of digital licenses. I think exactly the opposite will happen.

I am not a lawyer, but neither are you, so let's collect the data we have from the internet. It is true, as you mentioned, that courts frequently have invoked the first sale doctrine, stating that "Once the work is lawfully sold or even transferred gratuitously, the copyright owner's interest in the material object in which the copyrighted work is embodied is exhausted. The owner of the material object can then dispose of it as he sees fit. Thus, one who buys a copy of a book is entitled to resell it, rent it, give it away, or destroy it.". But note that such cases always involved games on physical media, where the "material object" part of the first sale doctrine applies.

The first sale doctrine has been ruled as not applying to digital sales in the US. And in Europe a high court decided that while you can't prevent your customers from reselling their physical discs, you are legally allowed to make that resold copy practically useless, for example by having it bound with a non-transferable online account to the original buyer.

So what is basically the most likely scenario to happen is that your legal right to resell games will be hollowed out to the point of uselessness by selling you only games that come in some sort of bundle with an online service and won't work without it. You can then legally sell the game, but not transfer the service, so what you are selling is a game that won't be playable. That is already current practice for MMORPGs (you can sell your WoW disc, but nobody will want to buy it), and there will be changes in the hardware of consoles and the software of every single-player game which makes this completely legal method the standard protection for every game.

While you are correct that used games are important as being games sold at a lower price, I do not accept your notion that Steam somehow doesn't count. In fact I'm pretty sure that Steam is the general model for the future: Games cannot be resold, and thus game companies capture the market of people not willing to pay full price for a game themselves by lowering price over time on digital distribution platforms. The buyers still get the option to buy games for cheaper, but the money from those sales goes into the pockets of the game companies, which didn't earn anything from used game sales previously.

Console makers and game companies will lose some sales from people who refuse to buy those consoles and games if they can't resell them. But I am pretty certain that they are very much aware of that, and did all the surveys and calculations to find out what the overall result would be. And the fact that these online account locks are becoming more and more prevalent, and will most probably be part of the next console generation, tells me that the companies concluded that they will make more money by reducing used game sales and piracy than they will lose from the protesters.

So game companies have the legal right, technical means, and the business plan for killing used game sales. That makes it extremely likely that it will happen, whether you like it or not.
Tobold's Blog

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