Court ruling could affect pre-owned game sales
By Tor Thorsen, GameSpot
Posted Sep 13, 2010 11:12 am PT
Ninth Circuit appeals court disallows resale of drafting software due to EULA terms; PC, console games come with similar restrictions.
Pre-owned game sales account for a major chunk of GameStop's profits and have other retailers wanting a piece of the pie. However, a decision on Friday by the US Court of Appeals for the 9th Circuit could imperil sales of pre-owned games--or any other software with a particularly worded end-user license agreement (EULA).
The court overturned a May 2008 decision by the US District Court for the Western District of Washington in the case of Vernor v. Autodesk. The original decision stated that Washington resident Timothy Vernor was within his rights to sell a sealed copy of Autodesk's AutoCAD design software he got at a garage sale on eBay.
The 9th Circuit's decision may imperil sales of pre-owned games.
Though the copy of the software was sealed, Autodesk's EULA--which was not visible externally on the retail box--said that the software is only licensed to purchasers, not actually sold. It also said that the license cannot be transferred, so after purchase, the software had to be destroyed if not used.
The Western Washington court's decision upheld the idea that customers own the software they purchase, commonly referred to as the "You bought it, you own it" principle. The appeals court's decision, however, undermines that idea if the software has "license only" language in its EULA.
Tech blog Ars Technica pointed out that the EULAs used by Electronic Arts and many other publishers have similar language in their games. "This software is licensed to you, not sold," reads EA's EULA. "Access to the software requires software registration with the serial code enclosed with the software. Software registration is limited to one EA Account per serial code and is non-transferable."
The EA EULA is for a PC game, which typically requires acceptance of such terms to play. However, comparable wording can also be found in console game manuals, such as that of Take-Two Interactive's recent hit Red Dead Redemption.
"THIS SOFTWARE IS LICENSED, NOT SOLD," reads the license agreement on Red Dead Redemption. (Capital letters in original.) "You agree not to: (a) Commercially exploit the software; (b) Distribute, lease, sell, rent or otherwise transfer the software, or any copies of the software, without the express consent of the licensor." (Emphasis added.)
Inquiries sent to EA and Take-Two about the appeals court's decision were not answered as of press time. However, EA and other publishers have recently taken measures to deter pre-owned game sales, from which they earn no money.
In EA's case, it is enclosing single-use codes in new games to both award extra downloadable content and enable online modes. The latter applies to all of the Redwood City, CA-based company's sports games, which will charge buyers of pre-owned games $10 extra to access online modes. THQ recently adopted a similar model for the online modes for its wrestling and mixed martial arts games.
http://www.gamespot.com/news/6275683.html?tag=latestheadlines%3Btitle%3B4
Subscribe to:
Post Comments (Atom)
Interesting....I suppose if this actually goes thru big time that GameStop and other retailers will fight it to the bitter end.
ReplyDeleteCan't blame the publishers tho...
Used sales aren't really hurting the industry, developers just aren't getting as much money as they could be. When a used game goes into circulation, be it with a formal retailer like GameStop, a fair trade location like Goozex, or a personal trade between friends, the game still has inherent value, as the product only has so many in circulation. A developer may not see a profit when I buy a friends game off of him, but they did make money on the initial sale, which is really all that matters. No one stole the game, no one took away from what they deserve... the developer just feels they deserve more. Charging to play online by requiring a new purchase, or a fee to play a used copy, is selfish, and hurtful to the consumer.
ReplyDelete(comment wouldn't fit...)
ReplyDeleteMore so, the bigger threat to the game industry than used sales/trades, is piracy. When a game is copied or pirated, the inherent value of the product drops due to the greater supply on the market. When more are available than paid for, the developer doesn't get a chance to break even for their work.
Something I don't understand is how this decision could affect games at all. With a game, I'm paying for a finished product. I know it's software, but it isn't software that I use further than it's entertainment. My copy of Red Dead Redemption is not the same as my copy of Microsoft Office. Would this switch mean that gamers are paying $60 a title to rent games indefinitely?
I couldn't agree more, Amateria. If this goes into affect, it will greatly limit many people's video game purchases. It doesn't mean we'll buy more games, it means we'll be playing less games and perhaps putting more time into games we already own. Instead of getting Fable III used off of Goozex, I would play through Fable II again rather than spend money on Fable III that I don't have or is budgeted towards rent or my car payment.
ReplyDelete