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Buying And Selling Used Video Games Could Become a Thing Of The Past

by Sean P. Aune | September 23, 2010September 23, 2010 12:00 pm PDT

If a recent ruling by the Ninth Circuit Court of Appeals stands, the days of buying and selling used video games could come to a screeching and dramatic halt in no time flat.

The whole problem beings with a ruling where an eBay seller resold some used copies of some architecture software. Since Tmothy Vernor bought the the copies of AuoCAD from AutoDesk at a sale, he felt that he was within his rights to resell the expensive software on the auction site because he never agreed to the copyrights contained within. Autodesk of course felt otherwise. At the district court level, the ruling was in favor of Mr. Vernor, but upon appeal to the Ninth Circuit Court, they overturned that ruling and ruled in favor of Autodesk saying that the software was never to be sold as the architecture firm had really bought the software, but had instead merely licensed it from the manufacturer.

This is where video games come into it.

GameStop LogoIf you read through the ruling (PDF link), it becomes clear that all software is not “sold”, but rather “licensed” to the end user.  If you read through the agreements in your video games (which no one does), it is all stated as “license”.  Under this interpretation of the law, no software falls under what is known as “the first sale doctrine”; a 1976 addition to the copyright law which allows the first person to buy an item to have the right to resell it.  In other words, we have never “bought” any of our video games, we have merely “licensed the right to play them”.

Say “good bye” to selling, trading or buying used games if this stands.

This would bring an end to one of GameStop’s leading revenue streams.  GameFly could conceivably have to stop renting games, along with anywhere else that does so.  All stores would have to stop their buy back programs.  In other words, this is the game industry’s idea of heaven.

As used game sales have increased in frequency, game publishers have been trying to find more creative ways to give games additional replay value in the hopes that you wouldn’t be tempted to sell or trade your games away for someone else o pick them up.  The publishers only make money on the first sale, so every used game sale is like a lost sale for them.

The problem is that the next court to hear an appeal would be the Supreme Court of the United States, and they have the right to pass on even hearing an appeal.  If the case should go to them, there is no telling which way the nine justices would rule.  My thinking is they would go with the “licensing” ruling because that is how it is stated in the software.  If that happens … “game over, man!”

Personally, I’m all for the sale of used games, otherwise I could never get rid of some of the stinkers I’ve bought over the years, or those from older systems that I just simply no longer need.  This could have a very definite backlash on the game industry as people would be more cautious with their purchases knowing they could never legally get rid of them.

Hopefully it won’t come to this, but the law is a fickle thing.

What say you?  Would not being able to buy, sell or trade games impact your purchasing decisions?


Sean P. Aune

Sean P. Aune has been a professional technology blogger since July 2007, but his love of tech dates back to at least 1976 when his parents bought...

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