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

Image from

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.”

DevRage, NerdRage, and Used Games

from AltDevBlog

 Woah, lots of rage lately around the used games hooplah.  When it was leaked a few weeks ago that the so-named Xbox720 might not allow used games to played on the console in an effort to…do something.  I think. 

I want to quickly cover some of the topics around this used games issue and what it’s such a hot topic right now, and then give my own little opinion. 

So to start -the devs–or publisher–we’ll go easy and the Video Game Industry (VGI). So the VGI has this perception that the used game market is cutting huge profits away from it — the general argument being that because of the availability of the used game at a slightly reduced price, players will buy the used game instead of the new game.  On a used game sale, the VGI doesn’t see any of the money — only the retailer that sold the used copy sees the money.  So, to the VGI they lost a sale, and all associated revenue with that sale.

So, to combat this alleged loss of money, companies have been trying to leverage DRM to control used game sales–making certain content only available to first purchasers, making used game buyers pay a “nominal” fee for access to the whole game, or more recently ham-handed, making the console unable to run used games.

From the gamers perspective, games are pretty damn expensive.  Over on IndustryGamers, a poster makes the comment that not only does the used game business model provide gamers with cheaper games, it also allows  those who buy new games all the time to sell old games and get money for new games.  Ironically, it’s a bit of a self-sustaining cycle with damned-expensive games by enabling gamers to pay the damned-expensive prices. 

Now, I don’t want to tackle the pros/cons of each system, just generally speaking.  For the VGI, the idea that every used game sale would be a first-sale purchase is a fallacy.  They have no way of knowing what the conversion rates would be first-purchasers, so I don’t think they can use that an argument against used games. 

Conversely, gamers are a noisy bunch with a high sense of entitlement to just about everything, and a propensity to troll first, ask questions later.  It’s not really all that hard to see why the VGI talks about used gaming in the same breathe as piracy.  A gamer is amazingly methodical, logical, persistent, and implacable.  The Gamers are irrational, whiny, arrogant, entitled, rageful little things who think they know everything about everything … ever. 

So what does it all boil down to?  Well, the currently model isn’t working I think is the key here.  I think that in a few years, as digital distribution increases, this will become less and less of a problem — you can’t re-sell a digital copy of the game (right now).  Games are currently over-priced, and that in order to increase the scope of games (especially as we move to digital distribution models), the price point will need to be lowered, drastically. 

The VGI companies need to recognize that it’s impossible to estimate with any degree of certainty how much money they would have made in first-sale in the absence of the used game model.  They need to provide incentive for first-sale purchases, not punishment for second-sale purchases.  That’s a subtle but very important distinction.  The gamers need to realize that publishers need to make money to continue to produce games.  To do that, they need first sales (and obviously first sales have to exist to have second sales).  No one is a bad guy in this picture. 

Personally – man I hope the new Xbox plays used games.  Really.