Court ruling could affect pre-owned game sales

[† cloud1414]

Ninth Circuit appeals court disallows resale of drafting software due to EULA terms; PC, console games come with similar restrictions.

Pre-owned game sales account for a major chunk of GameStop's profits and have other retailers wanting a piece of the pie. However, a decision on Friday by the US Court of Appeals for the 9th Circuit could imperil sales of pre-owned games--or any other software with a particularly worded end-user license agreement (EULA).

The court overturned a May 2008 decision by the US District Court for the Western District of Washington in the case of Vernor v. Autodesk. The original decision stated that Washington resident Timothy Vernor was within his rights to sell a sealed copy of Autodesk's AutoCAD design software he got at a garage sale on eBay.

The 9th Circuit's decision may imperil sales of pre-owned games.

Though the copy of the software was sealed, Autodesk's EULA--which was not visible externally on the retail box--said that the software is only licensed to purchasers, not actually sold. It also said that the license cannot be transferred, so after purchase, the software had to be destroyed if not used.

The Western Washington court's decision upheld the idea that customers own the software they purchase, commonly referred to as the "You bought it, you own it" principle. The appeals court's decision, however, undermines that idea if the software has "license only" language in its EULA.

Tech blog Ars Technica pointed out that the EULAs used by Electronic Arts and many other publishers have similar language in their games. "This software is licensed to you, not sold," reads EA's EULA. "Access to the software requires software registration with the serial code enclosed with the software. Software registration is limited to one EA Account per serial code and is non-transferable."

The EA EULA is for a PC game, which typically requires acceptance of such terms to play. However, comparable wording can also be found in console game manuals, such as that of Take-Two Interactive's recent hit Red Dead Redemption.

"THIS SOFTWARE IS LICENSED, NOT SOLD," reads the license agreement on Red Dead Redemption. (Capital letters in original.) "You agree not to: (a) Commercially exploit the software; ( Distribute, lease, sell, rent or otherwise transfer the software, or any copies of the software, without the express consent of the licensor." (Emphasis added.)

Inquiries sent to EA and Take-Two about the appeals court's decision were not answered as of press time. However, EA and other publishers have recently taken measures to deter pre-owned game sales, from which they earn no money.

In EA's case, it is enclosing single-use codes in new games to both award extra downloadable content and enable online modes. The latter applies to all of the Redwood City, CA-based company's sports games, which will charge buyers of pre-owned games $10 extra to access online modes. THQ recently adopted a similar model for the online modes for its wrestling and mixed martial arts games.

Source: Gamespot

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The end of used sales WILL mean the death of the industry I guarantee it. Very few games are worth a full $60

[Fire149]

Do you watch Sessler's Soapbox? He had a lot to say on the topic.

http://g4tv.com/thefeed/blog/post/707646/Sesslers-Soapbox-Gaming-is-Not-a-Crime.html

But yea, I could see Gamestop taking a HUGE blow to this. But then again who's going to actually police the sale of used games?

[Koby]

Very few games do I ever buy new. If the sale of used games became prohibited then it'd simply lead to more piracy or the death of the industry.

[animayi]

Very few games do I ever buy new. If the sale of used games became prohibited then it'd simply lead to more piracy or the death of the industry.

True, the industry would hurt if resale of v-games was prohibited, however the used games were new at some point, so not everyone is looking for a steal. Such a change would be felt to some degree, but I'm not so sure that the industry would collapse so much as an adaptation would take place.

[ragnawind]

The only way I can see them saving the industry if pre-owned games are prohibited is if the maximum price of next-gen games started at $50 again and decreased by at least $10 each year until it is worth at least $20. In reality, the games that were already purchased before and are re-sold by companies like Gamestop, don't make any more money than what Gamestop made in the first place to buy the copies they sold to consumers new. Pre-owned games are just used by Gamestop to make some of the money back that they used to buy the new copies of games. Without the profit from the Pre-owned games, they would have a very hard time staying in business, since not everyone buys a game new, since they are usually more expensive than they are worth. Also, based on their logic with that statement mentioned in the first post, no company would be allowed to sell any games they purchase from the publisher to sell in their stores. This would mean not even new copies of games can be sold at stores. The only way to distribute them, would be through the Publisher themselves, most likely over the internet. There are millions of people that don't even use the internet, buy from the internet(due to security reasons or something else), etc. I am one of the people that refuse to buy anything on the internet. They may think the HTTPS protocol that is used can keep data from leaking during or after transaction, but that isn't true at all. They would lose the majority of the consumers and video games would become defunct.

[PseudoSage]

Great. I'm sorry, but I agree with the sentiment that FEW games warrant a $60 price tag these days and I do believe piracy would reach new levels. I admit that I used to resist piracy and buy a lot of used games, but as time went on and even used copies went up in price I embraced some piracy. I may become a full pirate if there are no used games available as a viable option.

[Stuy]

arrh me harties tis good to be a pirate, with all the $h!tty games they bring out that arn't worth crap tis a pirates life for me.

yo hoh hoh and a bottle of rum ^^

[Vael]

honestly that is ridiculously stupid, it's all JUST business for those who make the games, but that isn't thinking about the consumers at all, in Australia new games cost $99 so not everyone can afford to spare that much on taking a 1 in 5 chance of a good game, those people need the pre-owned sale of games to actually play the games, what there doing is encouraging piracy, and reducing consumers.

[Nero D. Ace]

in Australia new games cost $99 so not everyone can afford to spare that much

$99!!!!!! O_O

MAN! you will get a heart attack if you hear how much i spend.

lets see. the most expensive game ive ever bought cost Rs. 80

according to the newest exchange rate, Rs. 50 = $1

so, i spend a maximum of $1.5 on a game

[Krogothwolf]

I still can't fathom why Software is treated differently then everything else :? PAWN shops and used car dealers have been around for awhile, why do software companies believe their product isn't the same as other products? It confuses me.

[-NSA-Sa1nt]

Sessler's soapbox did a great job on summing everything up. I'm personally of the belief that if you pay the money for it it should be totally legal to resell it if you choose to.

The fact there even wasting time on stupidity such as this issue. The companies have already got there slice of the pie for all these sales. If your going to waste your time on something focus on ripped software/games not the young kid trading a couple of games at gamestop for something new to play.

[ragnawind]

The fact there even wasting time on stupidity such as this issue. The companies have already got there slice of the pie for all these sales. If your going to waste your time on something focus on ripped software/games not the young kid trading a couple of games at gamestop for something new to play.