Sony joins EA and Ubisoft in considering limitations on used games

[saf1]

So how big is the game software industry??? Billion(s)?. Everybody wants their piece of the pie. Publishers are no different. This is a huge issue not only for consoles but also pc's. I'm not surprised at all but I will say this type of crackdown is a bit risky and very well could negatively impact publishers not to mention impact small businesses.

Do you have to pay Sears if you sell a used tool? How about that used dryer or fridge? Yeah, I know it isn't on the same scale, and depreciation. I could have also added how about the home builder you buy a house from? Do they get a cut when you sale the house for a profit (maybe not in today's economy, granted). But you see the point.

What ever happened to just making something people like or good. People will support it. Look at blizzard and world of warcraft. How many years has that been in play and it is still going strong with a steady subscriber base.

Sooner or later pcs and consoles will be free if they want to go the route of pay to play. I know I for one would not buy a box and then not be able to move it about if or when I get tired of it. The way I see it. Make it good and it will sell. Make crap and suffer.

 

[(((interference)))]

I can't believe how big headed the industry has become to think they deserve preferential treatment, especially when game sales are growing at ridiculous rates compared to every other media industry.

Gamestop has to rely on used game sales to make a profit, due to slim margins on retail sales. Publishers want a slice of Gamestop's pie but aren't willing to reduce their own margins.

It's basically corporate greed, how badly are publishers affected by used game sales. It doesn't stop COD, GTA, Halo, FF etc from selling millions of copies - if they think they can blame the used game market for underperforming titles, that is frankly ridiculous - good games and tie ins will sell, bad games won't, (good games that nobody has heard of won't sell either).

It's exactly like any other market out there, publishers wishing that the used market doesn't exist is a frankly ridiculous sense of entitlement. Car manufacturers have to compete with the used car market, you don't see them complaining - and if it's under warranty they'll have to service a car which they didn't receive any money from the current owner for.

And the argument that they're paying for online upkeep is completely flawed as on consoles only a single user can be online for each disc, so having 8 people play COD4 for 3 years online will be the same as the original owner playing for that amount of time. The retail price of the game should factor in the cost of online play for the playable lifetime of the game.

 

[Scott_Arm]

Ok, so I just got NHL11 and there was a special deal where if you preordered through Gamestop you'd get special equipment and access to a few character boosts. So, why exactly is the industry steering consumers into Gamestop? Why don't they do the preorder bonuses with other stores if they hate Gamestop so much.

 

[wco81]

Because they like preorders, which helps them predict sales more reliably and distribute more efficiently.

 

[AzBat]

Things are about to get scary...

The US Court of Appeals for the Ninth Circuit today ruled (PDF) on a long-standing case involving used software on eBay, and it came to an important decision: if a company says you don't have the right to resell a program, you don't have that right. Could this mean the end of the resale market for all digital content? Yup. But the court says it had no choice.

No, you don't own it: Court upholds EULAs, threatens digital resale
http://arstechnica.com/tech-policy/...or-ruling-upholds-tough-software-licenses.ars

Tommy McClain

 

[wco81]

Great, they can start prosecuting or suing people who put up games for sale on eBay or Craigslist.

That worked well for the RIAA.

 

[patsu]

... which is why:
http://forum.beyond3d.com/showpost.php?p=1465659&postcount=138

I suspect economics is a better tool to solve this rather than class action lawsuits. Vote with your dollars and the parties will adjust their plans.

Legal may be too blunt a tool to apply here.

In the above case, the plaintiff doesn't have a customer relationship with AutoDesk too.

But it may mean the publishers can stop GameStop's resale business legally (Err... need to look at their contracts). Whether they will stop poor gamer A from selling his used games to poor gamer B, we shall see.

 

[saf1]

I am not sure if a game focussed study exists but we can look at other content based industries, books for example:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=584401

Summarized here:

http://www.nytimes.com/2005/07/28/technology/28scene.html

Cheers

It is a interesting read, I'd recommend everyone to do so. My initial response was just another idiot judge who doesn't understand how technology works today. Then after reading it I had to actually say I'd agree with him. If Autodesk had a EULA which stated as the paper above said, then it is right there for all to see that you can not resell it. Really hard to argue that in a court, any court.

How will this correlate to video games depends I guess. Publishers can probably get away by changing their EULA's and say something similar. In that case as someone already said, just address it by your pocket book. Someone will finally catch on at some point. If not, they'll learn the hardware after they close their doors.

Digital content regardless of type like games, consoles, videos, movies, or music. Companies do not know how to address it and want to make the most out of it. I mean - just the other day I read something about first run movies that you can download and watch at home for 50 bucks. 50 bucks. At first glance I said who is smoking what and who would even consider it. But wait.... I take my 3 kids and my wife to the show. There is 56 bucks right there easy on tickets alone. Now what - sodas? 5 bucks a pop. Popcorn? Another 5 - by the time it is done there is another 50 or so bucks. Paying the 50 bucks and watching it at home on my own entertainment system, I've just saved 50 bucks plus gas - and I can watch it naked if I want (I wouldn't - an example).

Its all about making money and making as much of it as you can. Only way they will learn is if we, the people, hold firm and let them know what works and what doesn't. No reason for some of this crap to be done the way it is and I, for one, was hoping the current U.S. economy would pinch people more so we wouldn't rush to spend on some items we "could" do without. Maybe force some price adjustments but it doesn't seem to be following that thought process of mine - lol.

Oh well.

 

[Shifty Geezer]

It is a interesting read, I'd recommend everyone to do so. My initial response was just another idiot judge who doesn't understand how technology works today. Then after reading it I had to actually say I'd agree with him. If Autodesk had a EULA which stated as the paper above said, then it is right there for all to see that you can not resell it. Really hard to argue that in a court, any court.

AFAIK in the UK EULA's have never been tested and are regarded as unlawful because, I believe, parties have to directly involved. When buying software as a consumer, one's contract is with the supplier. Just checking up on this law wiki.

Here's a relevant quote that shows the difference with English Law:

So which of these is correct under English law? In order to have a contract with DogSlow, and indeed with anyone, certain formalities must subsist. Among these is the peculiarly English notion of Consideration. This says, in essence, that both parties to a contract must offer something to one another. If I offer to make a gift to you of my watch, for example -- I'm feeling generous today -- and you accept it, we don't have a contract. You can't then sue me if I refuse to hand it over. Under the principle of consideration, you must offer something in return. It needn't be much, but it must be something. If you offer me tenpence for my watch, and I accept, then we do have a contract.

Thus without giving anything to the software company, we have no contract. Anyway, the article is exploring the whole situation.

An interesting point at the end, EULA's aren't actually needed. The license agreements basically exist to absolve the software companies of all responsibilities and to prohibit copying, yet statutory rights and obligations which overule these contracts exist. That is, a software company can't claim no liability if thier software is directly involved. It seems to me that the EULA is born from a US legal system that, my guess, not being a legal expert, is less controlling and allows a lot more individual freedom which means it's an individual's responsibility to secure whatever rights they have, and basically contract law trumps all. If you sign you're soul away, it's your fault for signing, whereas in English law there's an escape through the Fair Claims principle that unfair (subjective) contracts are void.

It's also interesting how the courts recognise a distinction between the IP content and the hard platform, where a few posters in this thread don't see a distinction. That old example of used-book sales, "if it's okay for books, it's okay for software," also can be flipped for the other argument, "if it's okay for software to prohibit resale and lending, it's okay for books to," and publishers are now within their right to include an EULA in your shrink-wrapped novel that says only you are allowed to read to the book, punishable by an RIAA-like fine of $2 million and 17 years hard labour if you lend the book to anyone else, to have a legally sound position in the US.

I'll add something I've discussed with friends is we users should draw up agreements, and send them to these corporations claiming we won't use their products without them agreeing to such-and-such terms. However, people don't organise like that. Government takes the high-ground in such disagreements, and you can only hope democracy works and the governers actually represent the will of the people, while users take the low road and just ignore the law and do their own thing. Still, it'd be funny to have MS struggling with millions of individual licensing agreements as millions of customers present their own indiviual conditions of use before they buy MS products. I imagine it's avoiding this kind of mess that the UK and EU treat commerce on the stautory level, the same rules for everyone and in order to trade here, you just have to agree with them.

 

[wco81]

It's all going to come down to enforcement.

Software companies are crying foul about there not being enough prosecution of piracy. There are a few raids here and there but they really can't get enough resources from policing authorities to crack down.

Now they're going to try to get the authorities to help them prosecute people who sell or buy software second-hand? Good luck with that.

They could certainly pursue civil action. But really, is it going to help their sales when people determine that they're paying $60 in the case of games for a less than 10-hour experience and not being able to recover any of that cost through resale?

I heard the plaintiff in this case, Autodesk, is notorious about their software license policies, so they're likely to go after egregious offenders. But games publishers are not going to sue some average gamer who re-sells a game he's completed on eBay.

Unless they're that stupid.

 

[patsu]

It's all going to come down to enforcement.

Yap. Software companies will use their discretion to decide which case is worthwhile to persue. No one is going to monitor every transaction.

I thought in the AutoDesk case, the original Plaintiff is the man who was threatened by eBay to close his account. AutoDesk won the appeal later. From AutoDesk's perspective, that man has no reseller agreement and is causing channel/pricing conflict with authorized dealers. The problem is bigger for enterprise software market (There are only so many people who need AutoDesk).

 

[upnorthsox]

It's all going to come down to enforcement.

Software companies are crying foul about there not being enough prosecution of piracy. There are a few raids here and there but they really can't get enough resources from policing authorities to crack down.

Now they're going to try to get the authorities to help them prosecute people who sell or buy software second-hand? Good luck with that.

They could certainly pursue civil action. But really, is it going to help their sales when people determine that they're paying $60 in the case of games for a less than 10-hour experience and not being able to recover any of that cost through resale?

I heard the plaintiff in this case, Autodesk, is notorious about their software license policies, so they're likely to go after egregious offenders. But games publishers are not going to sue some average gamer who re-sells a game he's completed on eBay.

Unless they're that stupid.

No they're not because they don't have to be. It's about controlling the choke point, Gamestop, eBay, etc.... not the end point. Before, Gamestop et al could go tell them to scratch, now they'll have to negotiate. That's the end game here.

 

[Shifty Geezer]

That's true. Gamestop are taking the postion of the eBay trader in the Autodesk case, and selling on goods they don't have the right to sell on. Every publisher can hit them with a cease-and-desist order now and Gamestop can't do squat. It's questionable if the pubs want to do that, but if I were them, I'd take this opportunity to say something like, "gives us $10 per 2nd hand sale and we'll let you continue." I wouldn't be surprised if Gamestop's share value takes a hammering in the near future.

 

[wco81]

Well if they take away the used games business from Gamestop, then they probably go out of business and games publishers lose a useful distribution channel for preorders, game console launches, etc.

As has been said repeatedly, if they do decimate the used games market, then new games sales will suffer, as people won't make impulse purchases knowing they can always sell if dissatisfied with the game.

Also, since other big chains are trading used games, maybe publishers can't afford to antagonize all those chains. They're going to distribute media for a long time, not to mention needing shelf space for hardware.

 

[patsu]

Therefore, they may work something out together.

 

[Richard]

This is a terrible setback. The US court's interpretation is that a license is governed different from a sale. Which opens the question if a book is sold as a license, perhaps with a ribbon you have to cut to open the book, that says you're only licensing the right to read the book then libraries are effectively done for. With the current move to electronic books/newspapers this becomes even harder to argue against.

Unfortunately, if this decision is upheld again it's likely the UK will mimic it. I'm hopeful the EU parliament takes a stand on this, when the need arises.

 

[Shifty Geezer]

This is a terrible setback. The US court's interpretation is that a license is governed different from a sale. Which opens the question if a book is sold as a license, perhaps with a ribbon you have to cut to open the book, that says you're only licensing the right to read the book then libraries are effectively done for.

I thought copyright covered that. The problem is as new technologies have emerged, lawyers and politicians are dog to slow, too stupid to really understand what's involved, and then the courts try and solve current issues with outdated legislature.

On paper I can't see the UK following suit for the reasons covered in that law wiki. Our consumer rights are very different, as are Europe's. Wasn't it a French ruling that where a tax was levied on blank media to cover possible piracy, it was considered acceptable for consumers to copy music as it was already paid for? That said, parliament made a complete hash of the Digital Economy Bill, so who knows what dumb-ass laws we'll end up with. Democracy - doncha just love it?

 

[Zaphod]

I could have also added how about the home builder you buy a house from? Do they get a cut when you sale the house for a profit (maybe not in today's economy, granted). But you see the point.

Speaking of which... It would seem it is not only game publishers who are enamored by this line of thinking.

 

[saf1]

Speaking of which... It would seem it is not only game publishers who are enamored by this line of thinking.

Let the buyer beware - there is no excuse for ignorance or stupidity. In the link above the buyers said they had no clue about the fee. So the question is. Did they read it before they signed? Did they understand what they signed? Or....is this so new that the people who went over the loan docs just skimmed over it and missed it - or didn't cover it. Who knows.

The housing market is a mess in the states. Banks continue to do rolling forclosures and limit the number of houses on the auction block. As long as there are forclosures there will be more homes in the inventory and new buildings will continue to stall. So these guys, or this builder in Utah is trying to find a new way to bring in income. I guess. Short and long term.

Goes back to what I was saying earlier. Regardless of manufacture type (car, home, computer, game, whatever), build it well and to last, people will buy it. The movie industry is starting to see this only now. Release crap after crap regardless of the A-list who is in it, no one is going to waste their hard earned money on it...

Nice find though on the article. Great read and now another check box item in my list of things to watch out for

 

[wco81]

Wow talk about a parasite that firm is, inserting a hidden clause like that.

And their ultimate payoff is to securitize those contracts and get a big payoff on Wall Street.

Yeah if the games publishing industry want to be associated with those kinds of practices, it'll be great for business.