Selling Used Games (an un-derailment)

Alan Shutko · Feb 2, 2012

Umbran said:
If the item is a paperback book or a game cartridge, the publisher doesn't support the activity, but it happens because there's no practical way to discourage it. So, we do it anyway, and get used to the practice.

Actually, publishers can't stop it because legally, they can't. Book publishers tried to argue that they were merely licensing the material, but that argument was denied in 1908 by the US Supreme Court. Application of the First Sale Doctrine for software has had a varied history and it does not appear to have been settled whether EULAs can restrict you from transferring licenses.

For a very interesting recent development, ReDigi offers a market where you can sell "used iTunes tracks" to other users. They're being sued by Capitol Records, but Google is asking to file an amicus brief arguing that copyright should treat mp3s as material objects (in which case, first sale doctrine applies) or not (in which case, copyright does not give a distribution right for copies and phono records).

If nothing else, watching all this unfold has taught me that life is not as simple as conventional wisdom and EULAs purport to make it.

Umbran · Feb 2, 2012

Alan Shutko said:
Actually, publishers can't stop it because legally, they can't. Book publishers tried to argue that they were merely licensing the material, but that argument was denied in 1908 by the US Supreme Court.

Court decisions have been overturned before. If there was a practical end, I'm sure someone would try. But, since the practical matters overshadow the issue, nobody's is likely to try.

... it does not appear to have been settled whether EULAs can restrict you from transferring licenses.

And rare indeed are the folks who would try to base a business model upon an unsettled question. Those that do try may well not have much business sense to begin with. Thus, you're unlikely to see a successful marketplace.

Mark Hope · Feb 3, 2012

The Xbox360 licensing system isn't completely restrictive - you can effectively lend licenses in a limited fashion. Their system works like this:

When you purchase DLC, it is licensed to you in two ways:
1) You download it onto the console on which you purchased it. At that point, anyone signed into that console with their gamertag can use the DLC, even if they didn't purchase it.
2) You download it onto a console other than the one you purchased it on. At that point, only you (the purchaser) can play it on that other console, using the gamertag you purchased it with.

The DLC license belongs to your gamertag and to the console you purchased it on. Meet either of those criteria, and you can use it.

So if I buy DLC with my gamertag and download it to my console (Xbox A), then anyone playing on Xbox A can use that DLC.

If go round to my friend's house, I can sign into his console (Xbox B) with my gamertag, download the DLC to Xbox B and play it. Nobody else on console B can use my copy of that DLC.

And when I go back home, I can continue using my original copy of the DLC on Xbox A. Xbox Live doesn't care that there are now two copies of my DLC out there. My friend could use my gamertag on Xbox B and use my DLC if he wanted.

Also, you can transfer the console license to another console. So I could sign into Xbox B and transfer my console license from Xbox A to Xbox B. Now I could download any and all of my DLC to Xbox B and anyone playing on Xbox B could use it. I can continue to use my DLC on Xbox A, so long as I do so with my own gamertag, because Xbox Live still recognises that gamertag as the original purchaser of the DLC, even though I have changed the console license to another console.

As a limitation, you can only change licenses between consoles every four months. And your gamertag retains control over where the console license resides. If you have a falling out with your buddy, you can transfer the license back after the four month window, or transfer to it a third xbox or whatever.

So while you're not able to sell your DLC, you can effectively lend it to another console while still being able to use it on your own console using your gamertag.

Agamon · Feb 3, 2012

Mark Hope said:
And when I go back home, I can continue using my original copy of the DLC on Xbox A. Xbox Live doesn't care that there are now two copies of my DLC out there. My friend could use my gamertag on Xbox B and use my DLC if he wanted.

True, this is possible, but don't try this at home, kids. To me, it's akin to letting my friend use my email account or debit card.

Banshee16 · Feb 3, 2012

Sabathius42 said:
I can't speak for Steam (Civ 5 required I register on steam to use the game but I never use the service) nor iTunes (because I have a Sandisk MP3 player) but I can speak for Xbox Live. When I download a game or DLC for a game on Xbox Live it keeps a record of what I have downloaded based on my Username.

With iTunes it *used* to be that you can download at the moment you paid for it, but never again (unless you wanted to pay twice).

I think with iCloud now, anything you download is *supposed* to automatically get added to your cloud....but in practice, I've downloaded or purchased several apps or movies via iTunes that iCloud doesn't seem to keep a copy of.

I've had problems before where I buy something with iTunes, the download fails, and I try again, but it wants me to pay again. I had to call Apple, and they fixed it by having me rebuy it, and then reversed the first transaction.

I'm not sure with Google. I haven't taken the chance of deleting something I purchased, to see what happens if I try downloading it a second time.

Regardless, I still have problems with the theory. They're effectively trying to corner both ends of the market via digital controls. And, at the end of the day, we're talking software, which is an infinite product. Particularly via digital distribution, there's really very little difference in cost between distributing a sale of the software to one person or 10 people (aside from increased bandwidth). Unlike, say, GM, who has to purchase steel, plastic and rubber, which come in predefined, limited quantities, and then manufacturers them into the car. One car can only go to one owner.

This is a debate that's been going on for 20 years though.

I'm not as concerned about them putting digital controls on this downloadable extra content...so long as it's extra. But when they're talking about disabling multiplayer modes on used copies of the game (for instance), I have issues. Further, I have issues when I consider that downloadable content is not where this will stop. They're trying to get consumers *accustomed* to not being able to sell their games, or to expect full functionality from used games they've purchased, so that they can gradually increase the restrictions. That end result is where my concerns lie.

Banshee

Mark Hope · Feb 3, 2012

Agamon said:
True, this is possible, but don't try this at home, kids. To me, it's akin to letting my friend use my email account or debit card.

I wouldn't do it either, myself. But the option is there all the same. It becomes less sketchy if you don't have any payment methods attached to your gamertag (such as if you redeem store-bought code-cards to get your MSpoints) but you're still liable to be banned if your friend does something unpleasant while signed into your account.

(Also, to be clear, I've never lent DLC or my gamertag to a friend. We do use this method at home to share DLC between myself and my gf and our kids, though.)

Alan Shutko · Feb 3, 2012

Banshee16 said:
I think with iCloud now, anything you download is *supposed* to automatically get added to your cloud....but in practice, I've downloaded or purchased several apps or movies via iTunes that iCloud doesn't seem to keep a copy of.

Apps and music are supposed to be kept and redownloadable. Movies and television shows are not currently downloadable (per licensing with the studios).

Meatboy · Feb 4, 2012

Considering that you can buy and sell pretty much anything used. I mean if I can get used books, cars, homes, furniture, clothes, musical instruments or nearly any other item under the sun! Why is it that game publishers feel a need to be excluded from this reality. Once I pay money for something I get pretty indignant when somebody tries to tell me what I can do with it.

Zaukrie · Feb 4, 2012

The inability to transfer ownership of ebooks and other DLC is a big turn off to me. When my kid goes to college, I want him to be able to take my copy of a book with him, and read it at his leisure, not in a 2 week timeframe. They really need some way to collect money on a transfer. And, if I'm buying a license that restricts my ability transfer the items (again, this books mostly), why am I paying the same price? And, coupons never apply to ebooks either. The industry will figure it out, but in the meantime, it is annoying.