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ArugulaZ
09-10-2010, 08:10 PM
http://gizmodo.com/5635269/guess-what-you-dont-own-that-software-you-bought

Project Five Dollar may soon become Project Sixty Dollar thanks to a recent court appeals ruling which states that software can be limited to a single sale if the user agreement states that the person is buying a license to the software, rather than the software itself. Seems like the logical move for game companies is to include that user agreement in all of their software, forcing players to purchase new every time and driving GameStop out of business.

blinkpen
09-10-2010, 08:19 PM
Hmm, that strikes me as a pretty shady ruling, considering such rules don't apply to books or movies. I imagine Gamestop will fight it in higher courts and use those precedents to try and defeat it.

TirMcDohl
09-10-2010, 08:21 PM
...Yeah.

I don't know if this'll end up in front of SCOTUS, but you can BET that Gamestop, Blockbuster Video, Netflix, generally, anyone who rents and sells software and the like will probably be throwing some clout around to get this heard by higher-ups.

djSyndrome
09-10-2010, 08:24 PM
This will get bounced up to the Federal level, which likes to disagree with the 9th Circuit just because it can.

Brer
09-10-2010, 08:41 PM
This is the case I was referring to awhile back in one of our other threads, and I'm pretty disappointed to see it get overturned. This means that there's now a circuit split between the 5th and 9th circuits on first-sale doctrine and software, and whether software is licensed or sold.

On the one hand, the existence of a circuit split means that if Vernor can afford to try taking this to the SCOTUS, there's a better chance of them granting cert. On the other, the bigger question is whether he CAN afford to try to continue to fight this. Does anyone know if he's getting help from the EFF or any other such organizations.

Hell, given the implications for the used game market, and the obvious importance of used game sales (and no, I don't just mean gamestop, but via amazon, e-bay, and so on) to the gaming community, I would think the ECA would be ready to provide some help for strategic reasons. Or at least have an Amicus brief ready to go.

Traumadore
09-10-2010, 09:05 PM
It's not surprising that it's Autodesk that's complaining. Their software is unreasonably expensive as it is. Don't you have to renew their liscences on a yearly basis too? It's kind of a whole different product than entertainment media.

ajr82
09-10-2010, 09:53 PM
Hmm, that strikes me as a pretty shady ruling, considering such rules don't apply to books or movies. I imagine Gamestop will fight it in higher courts and use those precedents to try and defeat it.

As per the defense lawyer quoted in the Gizmodo story, there's no reason it couldn't apply to books or movies.

Mazian
09-10-2010, 09:59 PM
As per the defense lawyer quoted in the Gizmodo story, there's no reason it couldn't apply to books or movies.

Yes there is, 17 USC 109 (http://www.law.cornell.edu/uscode/17/109.html). Resale rights of books and recordings have been case law since 1908 (Bobbs-Merrill Co. v. Straus) and were codified by the Copyright Act of 1976, though of course computer software was not specifically addressed by that act.

juanfrugalj
09-10-2010, 10:18 PM
That's going to bite all software companies in the ass. No resale means no funds for your next purchase. Can't they see that?

Andrew
09-10-2010, 10:48 PM
So in a nutshell, legally this would mean that even if you own a copy of software--whether sealed in box or opened and never installed/activated, you can't resell it. Or rather, you *can*, but some faceless corporation can sue you and/or the website that would allow you to do it. Am I correct?

Of course, should it stand, the enforcement mechanism will probably be less the mere threat of lawsuits and more disc keys for *console* games (which, yes, I know already exist in the form of stuff like Project 10 dollar, but not exactly the same). Which would basically probably mean the end of me buying new consoles and games if it becomes standard.

You'd think these people would wait until consumers are forced to just buy digital downloads, anyway. That doesn't seem too far off.

I don't weep for Gamestop or anything, but despite all the problems console gaming has (ports frequently inferior to the PC, DLC that is stricter controlled and almost never user-created mods unless the manufacturer says so, closed-systems in general, etc.) what I tend to like about it is the simplicity: no need to enter license keys, no worries about #s of authorizations, no requirements to be online to play my damn game, etc.

If stuff like that is going to encroach on console gaming, I'm pretty much done. I'll just be retrogaming for the rest of my gaming days.

juanfrugalj
09-10-2010, 11:07 PM
Yep. Although it's not like you'd expect a grim future that way. There's an entire back catalog of Wii, GC, PS2, PSOne, N64, SNES, Genesis, and NES titles that can last a lifetime.

And don't get me started on the portables. The DS alone is just hilarious.

Zef
09-10-2010, 11:11 PM
Also, a local US ruling won't exactly prevent non-US gamers from trading/selling their used games :p

(Including trading/selling to US gamers, since the ruling only prohibits the sale, not the purchase.)

juanfrugalj
09-10-2010, 11:15 PM
That's the beauty! They'll probably enforce this through keycodes or linking games to personal profiles.

Sprite
09-11-2010, 07:06 AM
Man, what a stupid idea. Any company that does this would be guaranteeing their games don't have a lasting impact on gaming culture and inhibiting gaming's place in the culture at large. How would libraries and historians catalogue rarer games if there's no way to acquire them after six months?

Yes, I realize companies probably don't give two flips about that sort of thing, but still...

UnderHandedNM
09-11-2010, 07:39 AM
If stuff like that is going to encroach on console gaming, I'm pretty much done. I'll just be retrogaming for the rest of my gaming days.

This times 50 million percent. I dont buy a ton of used games, and almost never trade mine in, but if it's something I'm not sure about, hey, paying 20 for it is better then 60.

Hey developers, if you make good shit, I'll pay full price. I dont buy my used games to save ten bucks, or 20, it's just not worth it. By that time everyone has moved on to something else, anyways. But if somethings a year, year and a half old and 20 bucks, sure, Ill give it a shot. And if I like it, I might start looking at other games you make.

Is it time to just start stashing games? :(

blinkpen
09-11-2010, 07:51 AM
Is it time to just start stashing games? :(

I wouldn't jump to that just yet. I can't imagine that Ebay, Amazon, Gamestop, and anything else that has a lot of dealings in used games isn't going to have a lot to say about this and try to put a stop to it.

Sprite's point about the cultural short-sightedness of it all is a good one. Here we are, all trying to get videogames accepted as a legitimate and influential form of cultural expression and here the publishers are trying to shoot that notion in the foot, making the lasting impact of any game the six to twelve months it's on the shelf.

cortbassist89
09-11-2010, 08:49 AM
It was believed to be the first appellate ruling directly addressing whether a user agreement could forbid resales of software, though the appellate courts have previously backed companies that have imposed terms on how software may be used. The decision covers the nine western states, including California.

Wait, I'm confused. I thought this was a federal decision? Which states does it cover then?

juanfrugalj
09-11-2010, 09:11 AM
I wouldn't jump to that just yet. I can't imagine that Ebay, Amazon, Gamestop, and anything else that has a lot of dealings in used games isn't going to have a lot to say about this and try to put a stop to it.

Sprite's point about the cultural short-sightedness of it all is a good one. Here we are, all trying to get videogames accepted as a legitimate and influential form of cultural expression and here the publishers are trying to shoot that notion in the foot, making the lasting impact of any game the six to twelve months it's on the shelf.

Bunch of dopes would trade legacy for the Quickest Buck. How unfortunate.

The oddest thing is that they seem to believe money will start pouring in with these dealings. Don't they have market research for that?

Meditative_Zebra
09-11-2010, 09:24 AM
The decision was made in the 9th Circuit Court so the ruling is binding in all federal courts in that circuit. As Brer was saying, the previous ruling which affirmed the right of first sale was in the 5th Circuit, so now there is a split between those two regions. Which means it's pretty darn likely that this case will wind up going to the Supreme Court where Justice Kennedy will be the swing vote on whether or not to uphold the decision (PROTIP: Kennedy may be the swing vote on the court but he's actually pretty conservative. Don't bet on a reversal.)

http://upload.wikimedia.org/wikipedia/commons/thumb/d/df/US_Court_of_Appeals_and_District_Court_map.svg/500px-US_Court_of_Appeals_and_District_Court_map.svg.png (http://en.wikipedia.org/wiki/United_States_court_of_appeals)

ArugulaZ
09-11-2010, 09:26 AM
I'd be endlessly amused if this is what started the mythical second game crash.

I have to believe this will be pushed up to a higher court. Sure it's just the western states, but that's a good chunk of the United States... and many people see California as half of America anyway. (New York being the other half, and everything else being those pesky fly over states)

Sprite
09-11-2010, 09:29 AM
Hmmm... have any video game companies actually commented on this? Looks like it was mostly computer software companies that were pushing it; Google and the like.

ArugulaZ
09-11-2010, 09:37 AM
Not yet, but it seems likely. EA and T*HQ have been complaining that used game retailers are "thieves" and "parasites," and a ruling like this could make it very easy to blot them out of existence.

I believe Japan tried to pull this shit ten years ago with used video games, drying up the market for a while until the decision was overturned. It was hugely unpopular and difficult to enforce, so the law was stricken from the books.

juanfrugalj
09-11-2010, 09:44 AM
You can bet they're going to join the bandwagon ASAP, though.


Also, why is Google on this? They don't sell their warez.

Sprite
09-11-2010, 10:01 AM
Oh, but they do. (http://sketchup-store.sketchup.com/?lang_code=en)

juanfrugalj
09-11-2010, 10:04 AM
Huh.

Who da thunk it? I thought they're were all about the ads.

TK Flash
09-11-2010, 10:08 AM
Bunch of dopes would trade legacy for the Quickest Buck. How unfortunate.

What's for dinner tonight ma? Legacy? Again? I lost another 3 pounds this week.

juanfrugalj
09-11-2010, 10:22 AM
I was overly dramatic for kicks, but don't do that. These aren't the Atluses of the world by a long shot.

If the industry is to pretend being legitimate, it has to think of the bigger picture. Scheming new ways to thwart the evil pirates and secure short term profit is most assuredly NOT the big picture.

chud_666
09-11-2010, 10:28 AM
Would this prevent lending games to friends? Cuz if so they can eat my poo. I play a lot of games that way, and if they think this will mean im going to buy every game instead they are fucking insane.

Brickroad
09-11-2010, 10:29 AM
I was overly dramatic for kicks, but don't do that. These aren't the Atluses of the world by a long shot.

If the industry is to pretend being legitimate, it has to think of the bigger picture. Scheming new ways to thwart the evil pirates and secure short term profit is most assuredly NOT the big picture.

Then they'll all go out of business. I won't feel bad for them.

I'll be sad that there are no new games ever, I guess, but I already own Super Metroid, so I'll deal.

ArugulaZ
09-11-2010, 10:31 AM
Game companies have to be very careful not to kill the golden goose in their mad dash for short-term profits. This is what nearly drove a stake through the heart of the industry the first time. I don't buy the "oh God, we're STARVING!!!" argument either, because last I checked, Electronic Arts was hardly hurting for cash. They can respect the history of this medium and make a profit too... it's not an either/or deal.

Nodal
09-11-2010, 10:47 AM
Guys the industry is already moving towards digital distribution anyways. This is hardly new.

Andrew
09-11-2010, 10:49 AM
This times 50 million percent. I dont buy a ton of used games, and almost never trade mine in, but if it's something I'm not sure about, hey, paying 20 for it is better then 60.


Of course, if digital distribution made things cheaper and I could still have an easy, streamlined experience, that could be alright to. Thing is, I'm not entirely convinced the console manufacturers will live up to that.

Steam has many tiers of prices for games, distribute independent games, and even have...*gasp* sales!

On the other hand, we've seen Sony and MS have been really greedy. Not only are you usually getting no discount by purchasing a digital version of a PSP game, but MS has been racheting up the prices on XBLA games. Plus, Microsoft is the company that *started* the sixty dollar price point on current gen games, which is a big reason I almost never buy new this generation.

I bought Orange Box because it didn't do that bullcrap, plus even if it did, it was still worth every penny considering what it contained (granted, the Team Fortress 2 in it is essentially worthless, but aside from that...). I buy games like Bayonetta to support companies like PlatinumGames, but other than that, I'm really hesitant to go full price on most titles.

I'd be endlessly amused if this is what started the mythical second game crash.

I have to believe this will be pushed up to a higher court. Sure it's just the western states, but that's a good chunk of the United States... and many people see California as half of America anyway. (New York being the other half, and everything else being those pesky fly over states)

California is good when they're being culturally progressive, but other than that, they're pretty awful. Seriously, they should abandon those referendums entirely. Even if you discount all the money wasted overturning garbage like Proposition 8, which *never* should have passed in the first place, the people want everything but don't want to actually pay for it with taxes, which is why they're in the hole they're in.

Guys the industry is already moving towards digital distribution anyways. This is hardly new.

That point's been made already, but I think you're jumping the gun if you think that next generation we're going to be dealing with entirely DD-based gaming consoles. Even if you ignore the fact that the United States' infrastructure doesn't necessarily offer broadband access to all potential customers for the new Xbox or Playstation, not every country is like rich European countries or Japan, anyway. A new console with *no* support for physical media is a no-Go, I think.

Of course, the next generation is probably not going to begin for a while anyway, I don't see MS and Sony looking to launch a new console in such dire economic times before a nearly full recovery.

I'd say in 3 years we'll be hearing about a new generation of systems that support physical media and DD, albeit I suspect the physical media will come with *a lot* of restrictions, perhaps avoiding used game reselling.

DANoWAR
09-11-2010, 10:58 AM
Hey, another crash and I can stop worrying that I'll never catch up with my backlog.

MetManMas
09-11-2010, 11:19 AM
I don't really know how to respond to this, since I'm not anyone in the industry. I like buying stuff physically and digitally, but I don't see this thing lasting. I mean, it's fine with digital since that's pretty much the case there anyway, but the only thing I can see happening if they do it en masse with physical games is even more lost profits and the companies that try it possibly going bankrupt.

I know game companies tend to care more about the NOW than the THEN, but there's something to be said for having a game on its original media in playable condition. Take that away, and it's just another plastic coaster like those AOL discs. =/

Alpha Werewolf
09-11-2010, 11:52 AM
I don't see how this is helping the game industry. It's just... ugh.

How will the enforce this, anyway? I am reminded of the time when they prohibited... alcohol, I think it was? And the mob made huge wads of cash on black market alcohol.

juanfrugalj
09-11-2010, 11:56 AM
Even if you ignore the fact that the United States' infrastructure doesn't necessarily offer broadband access to all potential customers for the new Xbox or Playstation, not every country is like rich European countries or Japan, anyway. A new console with *no* support for physical media is a no-Go, I think.


Not just that, many ISPs are eschewing flat rate models. Digital distribuion at full retail price will not be as agreeable when your cable company wants a toll for those extra gigs you went overboard.

Aquadeo
09-11-2010, 12:52 PM
This is important news for Autodesk, but maybe not for GameStop just yet.

As I hear it, the catch is that you can't sell a program used if it's forbidden in the EULA. For the most part, this is understood to mean that such a clause will be inserted overnight and almost everyone will accept the terms during installation without reading them.

But when was the last time you had to agree to an EULA when installing a new game on your DS? I don't recall any "terms of use" in the manuals, either... The way I see it, this is more or less a PC issue.

Now, I don't doubt for a second that the PC game industry is going to update their EULAs ASAP, if that ruling holds. But that portion of the used games market is a small, small piece of GameStop's pie.

(Still, when your neighbour's house is on fire, look to your own. These developments aren't good for *some* software owners, which means *all* software owners would do well to be cautious.)

botticus
09-11-2010, 12:58 PM
I'd say the other part of that will be the fact that you can't return a game once you open it, and one wouldn't see any EULA to agree to or decline until opening/installing the game. That's a rather big consumer issue.

Eusis
09-11-2010, 01:03 PM
But when was the last time you had to agree to an EULA when installing a new game on your DS? I don't recall any "terms of use" in the manuals, either... The way I see it, this is more or less a PC issue.
This. I suppose companies can still try to figure out some way to implant it, but at most we're just seeing this for online modes (Playstation) and whatnot, not something to click through to actually play physical games. And those that DO have that like FFXI aren't really resellable anyway.

juanfrugalj
09-11-2010, 01:26 PM
First company to think of an authentification/profile synching process through PSN wins the day. Hell, you only need a silly reason, like validating Achievements or somesuch.

Anyway, this is not set in stone and does not affect the console industry, but it's a precedent, and one many publishers would likely love to follow.

cortbassist89
09-11-2010, 08:54 PM
I don't see how this is helping the game industry. It's just... ugh.

How will the enforce this, anyway? I am reminded of the time when they prohibited... alcohol, I think it was? And the mob made huge wads of cash on black market alcohol.
More install/activation restrictions of course.

Chasmang
09-11-2010, 09:59 PM
Guys the industry is already moving towards digital distribution anyways. This is hardly new.

While I'm sure we'll see more digital distribution in the future, the industry would be crazy to focus on it as much as people seem to think they will.

Sanagi
09-11-2010, 10:00 PM
I find it funny that the concept of ownership is being undermined not by socialists but by large businesses.

Andrew
09-11-2010, 10:09 PM
More install/activation restrictions of course.

Yeah. That worked out awesome for the PC gaming industry, didn't it?

Alpha Werewolf
09-11-2010, 11:18 PM
I find it funny that the concept of ownership is being undermined not by socialists but by large businesses.

That's an interesting point! It means that capitalism, and NOT socialism, is the most dangerous enemy of ownership.

Huh.

Spuuky
09-11-2010, 11:44 PM
That's an interesting point! It means that capitalism, and NOT socialism, is the most dangerous enemy of ownership.

Huh.Huge corporations abuse consumer rights when they aren't regulated? Pretty surprising. Not that this is especially abusive compared to many other examples in the economic world.

The software industry just wishes that their products were actually a "consumable" (you eat and it is gone) rather than, I don't know, an art form.

Digital distribution may actually make games cheaper - Valve will eventually have enough evidence to simply demonstrate that lower cost, higher volume sales makes more money when there's no physical assembly and distribution cost, and even the ponderous console game industry will have to recognize it. It just might be a while.

Sucks that Internet technology is advancing so slowly, though. Really, I still have the same cable with all the same problems as I did almost 10 years ago, except it costs more?

Brer
09-12-2010, 01:29 AM
I find it funny that the concept of ownership is being undermined not by socialists but by large businesses.

It's worth remembering that this isn't really about ownership as far as they're concerned. It's about preventing piracy. The "Licensed, Not Sold" legal argument is a direct result of the 1980 amendment to the United States' Copyright Act (That would be the Computer Software Copyright Act Of 1980), based on the recommendations of CONTU (http://itlaw.wikia.com/wiki/CONTU_Commission). That amendment added Section 117:

117. Limitations on exclusive rights: Computer programs54

(a) Making of Additional Copy or Adaptation by Owner of Copy. Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

(b) Lease, Sale, or Other Transfer of Additional Copy or Adaptation. Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner."

The "licensed, not sold, you don't own this software" argument (and the EULAs which put that claim forward) were and are an attempt by software developers and publishers to avoid the consequences of this part of the law (since if you don't own it, you're not the "owner" and therefore can't make that archival copy), which at the time was viewed as effectively green-lighting piracy ("My god man! You're telling people that just because they -bought- something that they can make a copy of it! Of course they'll go into business mass-producing copies for sale!").

Elements
09-12-2010, 01:41 AM
I am once again unable to suppress my vision of a software dystopian future, in which the standard PC has degenerated into a console-like device, scarcely distinguishable from an X-Box 360, capable of doing no more than the specific functions the developer limits it to, and only running the approved, licensed software from the approved, licensed publisher, for the approved, license-purchasing consumer. Meanwhile, the underground resistance of real computers lives on in homebrew systems and hardware, running GNU and FreeBSD OS and software, while being shunned by the masses as the machines of brigands and heretics.

Merus
09-12-2010, 01:59 AM
I like all the people that think that it's lack of the used markets that's going to restrict gaming's legacy, and not the way the games just stop working after a while. There are top, top men on it, anyway.

Still, there are a lot of people who will not pay $60 for a game, and they will turn to piracy. This goes double for markets outside the US, where games are generally more expensive. Making the used market illegal is only going to make piracy worse.

Desonovich
09-12-2010, 08:52 AM
Indefinitely.

Speaking as someone who personally buys most of his titles used - and yes, you can mark me as a villain, if you'd like, because I am aware of what this means for many developers - I see this as a great disappointment. As Andrew already mentioned, the price point of today's games are too high - much too high - for a generation of gaming that has largely been "hit" or "miss" for me.

I don't buy used games out of spite, active investment, or even due to financial constraints. For some games, it just makes sense to me to buy the game used. Mass Effect 2? I can buy that for $29.99 used, or I can buy it new for around forty dollars. Dragon Age? I just picked that up for $24.99, while the original game still markets around fifty dollars at all stores in my area.

These are games that, for the most part, rarely dip too low in price unless they're pre-owned (or until years after the game is released, and we're looking at around three-four years.)

Competitive pricing by the used game market makes it less feasible to "wait" for an un-used game to dip to low prices. If the prices of new games could drop as fast as they do for pre-owned, well, I'd buy new.

The distasteful reality of gaming today is that not all games are really a "sure" buy anymore - not that they were back in the PlayStation 2 days, but the bigger name titles tend to be more amazing as opposed to how, personally, I feel about some titles today. Mass Effect 2? Having gotten it now, I would have gladly bought it new. But Dragon Age? I honestly don't like it. Call me crass or uneducated, but I bought both games used and only one of those games were enjoyable.

And now factor in that I bought both games for a combined price of one of those games new.

I'm not trying to justify the fact that people buy used games. I realize that it's putting some developers in a financial spot. I realize that the nature of game's budgets today need my dollar more than ever.

But honestly, unless the game is from Atlus - where I know it's on a limited production run, and, well, I like helping out the little guy - I'm not inclined to buy a game new because the "risk" of triple-A titles these days outweight the benefits. Games cost more than they used to, but the entertainment "guarantee" is not as solid as I believe it was once.

Merus
09-12-2010, 01:00 PM
Valve's Steam sales appear to suggest that a more effective pricing scheme for games is to slug the guys that want to get the game first for full price, then have regular sales to drop the price down and capture the market that is willing to wait for a good moment.

Desonovich
09-12-2010, 01:24 PM
It occurs to me that my deal with prices in general should probably stem from publishers, and not developers.