The End of Used Game Sales

**Kugyince** · 10-11-2010, 06:27 PM

Quote:

Consumer advocates are up in arms over a recent ruling by a federal court of appeals in Seattle. The decision, Vernor v. Autodesk (PDF), held that the terms of an end-user licensing agreement, or EULA, can change the sale of commercial software into a mere license, in this case a license that prohibits users from reselling their copy of the software.

The case involved an eBay seller named Timothy Vernor. Vernor bought several outdated copies of Autodesk's AutoCAD program from a business that had originally purchased the software from Autodesk. Vernor then resold the copies well below list price on eBay, despite efforts by Autodesk to have the listings canceled.

The three-judge appellate court, reversing a lower-court decision, ruled that the original owner was bound by the software license not to resell the copies. As a result, Vernor obtained no rights by purchasing the discs, and his subsequent sales violated Autodesk's copyright.

The Electronic Frontier Foundation, which filed an amicus brief supporting Vernor, decried the ruling as "a major blow to user rights."

Beyond the ruling, the opinion announced a simple test to determine when a software transaction constitutes a licensed use of the product rather than the outright sale of a copy. The transaction is a license, the court said bluntly, any time the seller specifies in a EULA or similar document that "the user is granted a license." The document "significantly restricts the user's ability to transfer the software" and otherwise "imposes notable use restrictions."

That test would treat nearly every EULA I've read as a license, not a sale. And given such helpful guidance by the court, it's safe to assume that any EULAs that don't meet these minimal requirements will be quickly rewritten. Under the Vernor test, most software transactions will be treated as licenses.

And the difference between a sale and a license can be significant, as the Vernor case demonstrates. Under a longstanding principle of copyright law known as the "first-sale doctrine," for example, the lawful owner of a copy has the right to resell it without interference from the copyright holder. The first-sale doctrine makes possible the secondary markets of used-book, -music, and -game stores, among others.

Indeed, the primary goal of sellers seeking to characterize transactions as licenses is often just to avoid the first-sale doctrine and foreclose the creation of those resale markets.

Beyond software, the appellate decision has the potential to impact resale markets for a wide range of information products that come bundled with license agreements. This includes other forms of digital content, including electronic books, music, video games, and movies.

Read more: The end of software ownership--and why to smile | Business Tech - CNET News

**Slime Slayer** · 10-11-2010, 07:18 PM

I don't see how video games are any different than a lamp.

**Kong** · 10-11-2010, 07:45 PM

This would be like Ford telling you, you can't resell your used car because that would drive down the price of new cars.

Poor them, but that's how the world works. If I buy something I own it and if I want to sell something I own, I will.

@Steven, they are different because they figured out how to make you agree to a contract just by buying it. Lamp makers weren't smart enough to do that.

I think a better comparison is a book. Software is very much like a book. Still, we don't agree to any legal contracts when we read a book and we can sell it to whoever we want for whatever price we want.

**Demon-Mask** · 10-11-2010, 07:48 PM

Yes, the same companies that pride themselves with doing well in a supply/demand driven capitalist economy get to bitch when people use surplus of the companies product and sell it, thus decreasing demand for the new product. Maybe they should make less product, so there is more demand and they can charge more for it.

**Kugyince** · 10-11-2010, 08:02 PM

Basically any software purchased that contains an EULA "end user license agreement" is not actually owned by the purchaser by instead licensed. Licensed software is unable to be resold or "sold as used".

**Slime Slayer** · 10-11-2010, 08:19 PM

Well there's is no way places like ebay are going to tell people they can't put their used games on there. This could be serious for places like EB or Gamestop though.

**Dudebro** · 10-11-2010, 09:08 PM

Game companies will only be hurting themselves by doing this. Not everyone cares but plenty of people refuse to pay full price for most games and they wait for used deals. Without that option they'll just not buy the game at all. Besides that it just makes them look greedy and they'll lose some customer loyalty.

I think a big problem is the uneducated video game consumers who don't care. I hate to lump them all together but I think most have other people buy for them(mommy and daddy) so they don't have perspective on this. Once they are forced to do it on their own they'll regret it but by then it'll probably be too late.

**Kugyince** · 10-11-2010, 09:37 PM

If it does happen I will just buy the ones I want to support new and start pirating the ones I don't care about.

**Dudebro** · 10-11-2010, 10:06 PM

Quote:

Originally Posted by Tenser

and start pirating the ones I don't care about.

That's the funny part. This is supposed to be a way for them to clamp down on people not buying for full retail price but it will backfire and cause more piracy. It's almost like the people in charge have no clue about how it really works.

Btw I think this is also wrong because some companies refuse to lower prices on games regardless of how long they've been out. Last time I looked Mario Kart Wii and all the other major titles for Wii are still full price. Halo 3 is still full price even though Reach just came out. I'm sure Sony does this too but I don't follow their gaming prices.

**Tails** · 10-11-2010, 10:16 PM

Think New SMB DS is still at 35.

**Slime Slayer** · 10-11-2010, 10:21 PM

I would imagine that in most cases the money goes right back into the industry. For example selling sf2 so you have enough for sf3.
My old roommate never had more than 2 or 3 games at a time. He would sell and buy new games usually weekly.

**CatalystiCam** · 10-11-2010, 10:25 PM

Really?

This is retarded, I am one of those people DB was not referring too... I think he was referring more so to the really young ones like 10 and under and not an older teen like me... Anyways, besides that I've always had to work hard for money to get games, my parents never pitched in for gaming causes since I was like 5 over a decade ago...

I think it does make sense for newer games but if it's out of production then let it go for god's sake. You ended production, that's your choice, now when people don't want the game they throw it in the garbage instead of letting someone else who wants it, buy it? Retarded.

**Dudebro** · 10-11-2010, 10:26 PM

Another good point steven. Everyone I know who sells games is doing it to buy more new games. All this is doing is causing hard feelings with consumers who will be stuck with games they may not like or are bored with. Foolish move all around.

Quote:

Originally Posted by cam

I am one of those people DB was not referring too

Well duh, you go on to say that you never had things handed to you by your parents. Age is irrelevant. That was my entire point in judging these kind of people.

**Kugyince** · 10-11-2010, 10:35 PM

I wonder if this would affect rental businesses such as Gamefly and Red Box?

**Dudebro** · 10-11-2010, 10:36 PM

I think it would. Redbox is only movies in my area though so I wouldn't notice the change. Sadly we have no rental places where I live.

**Kugyince** · 10-11-2010, 10:39 PM

Technically they are maintaining ownership of their copies though.

**CatalystiCam** · 10-11-2010, 10:39 PM

Quote:

Well duh, you go on to say that you never had things handed to you by your parents. Age is irrelevant. That was my entire point in judging these kind of people.

Just something that I've noticed that the younger ones have got things boughten for them... Or now they get payed way too much for doing nothing, kind of the same still.

**Kong** · 10-11-2010, 10:57 PM

Electronic Arts said used game sells hurt them way more than pirating.

What I don't understand is why EA thinks they are special. You don't hear Ford or Steven King whining about this. Used sells hurt them just as much.

**Dudebro** · 10-11-2010, 11:41 PM

Quote:

Originally Posted by Tenser

Technically they are maintaining ownership of their copies though.

I'm not familiar with all the details, is it illegal to make money off it if it's technically under license?

Honestly this whole thing is kinda unbelievable to me. I'm not stupid, I know why these companies would want to do this but I can't believe they're actually going through with it knowing how unpopular it will be and the damage it will cause. It's like greed is just too powerful for them to resist and it's completely clouded their reasoning.
Like Kong pointed out this is no different than Ford telling you it's illegal to sell the car you bought from them. That would be laughed out of court if it was attempted but some how this makes sense to some people? It's just staggeringly stupid.

**elrod21** · 10-12-2010, 01:31 PM

This is definitely ridiculous. This will definitely drive up Piracy. See how that affects the bottom line. Like was already pointed out, I can't sell my old games to get new ones, so why buy the new ones at all?

It never ceases to amaze me some of the blunders courts have made in decisions.

**ZedIsDead** · 10-12-2010, 01:45 PM

This makes me sick. As a guy who almost exclusively buys used games, I will most likely start pirating if this actually comes to pass. There is no way I'm spending 60 bucks on a new PS3 game.

**Mareeps** · 10-12-2010, 03:54 PM

This is so stupid, we pay an obscene price of $60 for a game, and now they tell us that we don't own the game, but instead the game is licensed to us? The game disc is in my possession, therefore, I own the game disc, therefore I should be able to sell it.

**DrunkN** · 10-12-2010, 04:09 PM

What about games that aren't produced anymore? I was just planning on buying FFVIII, is that gonna go three inches down the toilet if this passes?

**Demon-Mask** · 10-12-2010, 06:25 PM

Quote:

Originally Posted by Tenser

Basically any software purchased that contains an EULA "end user license agreement" is not actually owned by the purchaser by instead licensed. Licensed software is unable to be resold or "sold as used".

This is asinine. Seriously, I buy a sixty dollar game, but I don't own it? I can't sell it, and the disk is actually just on permanent loan to me. You know what, this is the kind of BS that makes piracy as common as it is. The consumer is so poorly treated by the producers of games. What's that, you haven't enough money to pay sixty dollars for a game, you only have twenty-five? Well too bad, because you can't buy used games anymore. Short on money, can't quite pay the bills? Too bad, you cannot sell your games to make that last bit up.

Used car sales and used book sales aren't seen as a horrible, why should this be any different? Why should software producers be special. Last time I checked, cars took a hell of a lot more time to design, test and manufacture than games, and yet game producers are the ones bitching about it. Oh woe is me, I don't get sixty dollars from that particular person. What about a game that is no longer in production? So what, is it to become illegal to buy a copy of Pokemon Emerald Version, or Castlevania 64?

Last I checked, these games are no longer in production, therefore no longer profitable to the people who produce the games, meaning that no one is loosing a single cent of profit.

This is why I hate game manufacturers anymore, not only are we expected to pay sixty dollars for a new game, we are expected to pay sixty dollars for a sub-par game. So what is to happen after used games are no longer to be sold? If I don't want a game anymore, am I to throw it away. If I don't have the extra money to buy a game during it's production run, but I do afterward, am I to forgo the pleasure of ever playing the game?

**Kugyince** · 10-12-2010, 06:35 PM

This cant count towards older games as they were not sold with a EULA.