SURPRISE! GameStop wants to sell Used Digital Games

Wait…who’s surprised?  Definitely not me.  In the grand scheme, it’s not overly unexpected.  In our industry’s  little survival of the fittest battle, the publishers try to kill off the used game business, and the used game business finds new in-roads to stay alive.  I think there this gets really interesting is how this will effect the idea of ownership of digital properties.  Right now, games are all sold as “licenses” to the software — meaning that you don’t actually own the software, you just purchased a license to use that software.  Sometimes, that involves a physical medium, other times it doesn’t.

Big Publishers are likely to push against this and say that the license is non-transferrable (meaning it can’t be sold).  The counter claim to that will likely be the Doctrine of First Sale, which basically says that the publisher only has control over the first sale of the product, and not any subsequent sales of the product.  Again, the publishers are currently holding the stance that because they are only licensing the software, it doesn’t qualify for First Sale Doctrine.

When this battle comes up in the courts, I’ll be really excited because this has larger repercussions outside of gaming, specifically in cracking the lock on content to certain platforms (like those tied to the iTunes store, or the Zune store, or Amazon). Anyway, the article doesn’t say much other than GameStop mentioned exploring the possibilities, which again … surprises no one.

Via: GameStop Wants to Sell Used Digital Games – The Escapist 

A New Case Questions First Sale Doctrine and Digital Media – Might Mean Used Games are A-OK

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So, hot on the heels of my article about the used game business and the move to digital distribution comes a court decision that will have a significant impact on whether the used games business will continue to have a business, and whether something like Xbox720s no used rumor is even an option. 

So the article on Ars Technica is about Capitol Records Inc vs. ReDigi, Inc.  ReDigi is a pre-owned resale service for digital music.  Capitol Records sued ReDigi last month for copyright infringment, and asked for a preliminary injuction — which means Capitol asked the judge to just say they were right without going it going to trial. 

Faced with this, Judge Richard Sullivan of a New York court denied the preliminary injuction – meaning that it has to go to trial.  The ruling was rather … brief and not horribly informative.  Basically, all we know is that Judge Sullivan considered previous cases, first-sale doctrine, and the legal theory of those who have legally obtained copyrighted theory have the right sell it (which is currently in contention). 

The Ars article also cites a few other cases, both for and against the media and first-sale doctrine. 

So, why does this matter for games?  Well, there’s a couple reasons. First, the willingness of Judge Sullivan to send the case to trial means that there’s significant doubt in his mind as to the validity of Capitol’s argument that ReDigi is engaging in copyright infringement.  Even the judges unwillingness to give a preliminary injunction is a win for the ReDigi company.  What will hopefully come out of the case will be clarification of consumers rights when buying licensed content–and hopefully in the consumers favor. 

The ideal situation would be that selling used media (music, movies, games) would be protected by the First Sale doctrine, which means that after the first sale, the content creator no long controls the content and the purchaser can do whatever s/he would ike with the content as long as it’s not infringing.  In this case, the purchaser should be able to sell their “license” of the software without the permission of the original content creator. 

So, if the case comes out where media is protected by first sale doctrine, the Xbox720 unability to play used games would likely be seen as a circumvention of the first sale doctrine, which would probably lead to a minimum, a lengthy legal battle and at most, a force recall to remove the used game restrictions.  It would also mean that so decried used games business would continue happily along, providing their services to consumers. 

Additionally, platforms depending on the outcome of this case, platforms like Steam, Origin, and Impulse could also begin to sell “used games” to people at a discounted price.  In the case of Origin isn’t such a big deal per se, but for Steam and Impulse would essentially be digital visions of GameStop’s brick and mortar stores.  In fact, with GameStop’s 2011 acquisition of Impulse might point to GameStop already putting these pieces in place. 

Overall, it’s a really exciting possibility toward getting greater consumer rights when it comes to digital media, which is an increaseingly sensitive and timely subject as more of our media is managed and owned “digitally.”