Recent stories about potential technical efforts to limit the future playability of used games, as well as commercial efforts to limit the content included with used copies, got us wondering: is it actually legal to hinder someone from reselling a game (or piece of a game) that they legally bought in the first place?
At first glance, such efforts would seem to fall afoul of the first-sale doctrine. First established in a 1908 Supreme Court case and codified into law in 1976, the doctrine basically gives the initial purchaser wide-ranging rights to the use of the product they've bought, including the right to sell it to a new owner.
So if a retail game comes with online-activated DRM or some other method for preventing a second owner from playing, doesn't that go against this longstanding legal principle? Probably not, according to Electronic Frontier Foundation Intellectual Property Director Corryne McSherry. While the first-sale doctrine says a company can't stop you from selling, giving away or even breaking your legally purchased software, "I don’t think it is binding on others to assist you in doing all of those things," she says.
"I think the first-sale doctrine... would say you have a right to sell your old game... and you have the right to purchase a used game... but the first-sale doctrine doesn’t require somebody to build a used book store, if you know what I mean," she continued. In other words, just because you can sell a used game doesn't mean the platform maker has to make it easy, or even possible, for the new owner to play it.
It's an odd distinction, and one that's dictated by the still legally murky world of the End User License Agreement. Most software these days, including games, comes with such a EULA, saying the initial purchaser is just a licensee and isn't allowed to resell that license to a new owner. This is how digital download services like Steam and Xbox Live Marketplace can legally prevent you from reselling digital copies of their titles.
How do the courts deal with the conflict between these EULAs and the consumer's legislatively granted first-sale rights? The case law regarding the subject is a bit unsettled, but the trend seems to be going in a decidedly consumer-unfriendly direction. "Assuming you actually agree to [the EULA], even if you didn't read it, courts tend to treat those contracts as binding," McSherry says. "There's a tension there — have you contractually waived your first sale right? — but unfortunately recent cases have not been really positive in that direction."
Of course, just because it's legal doesn't mean it's a good idea, for a variety of economic and consumer relations reasons. But if companies are going to be prevented from scaling back a used game's value, it will likely be because of public pressure, and not legal pressure.
"I think a company is free to design its games the way they want to design their games," McSherry says. "To me, it's less of a legal question and more of a question of business and public policy."
Listing image by Photograph by Mykl Roventine
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