As we know, the PlayStation 4, or as we’re calling it, Roy, and the NextBox720 or whatever, will probably have anti-used game functions built in. You can buy a used game, but it’ll only be a trial version.
Here’s the problem that Sony and Microsoft likely fully realize and are hoping you don’t: in the United States, at least, this might not actually be legal, and there are, in fact, a few places that’s it’s completely against the law.
Let’s put on our law nerd caps and talk about what’s going on when you buy a copy of a copyrighted product. That purchase is covered under what’s called “the first-sale doctrine”. Summed up simply, that doctrine says once you buy a product, even if it contains a copyrighted work, you own the copy and can resell it, use it as a coaster, whatever, it’s yours. You own it, and the copyright owner can’t do a damn thing about it.
If this sounds like something that’s really going to pee in the gaming industry’s punch, well, kind of. In fact, it becomes pretty grey and murky, pretty fast.
Software companies would like you to believe you’re only “licensing” the software from them under the End User Licence Agreement. But it’s not that simple: recent rulings have stated that EULAs are binding contracts…but that the first sale doctrine also applies. So, in theory, if you were, say, given some software for Christmas, you could sell it under the law, but if you bought it yourself, you’d be bound by the EULA.
But wait, lawyers will say! Video games have a special exception! Which they do: a law was passed in 1990 making it illegal to rent a game and copy it, which is probably the law that Sony and Microsoft are leaning on, since the unintended effect is that it restricts the copyright on video games. But that’s not the end of it.
There’s something sticky: the Clayton Anti-Trust Act. It’s pretty hard to argue there isn’t collusion going on between game publishers and console makers when they lock out used games, something GameStop is likely to argue in court if these consoles do come to market with these features. It’s pretty hard to argue that you’re not colluding to restrict competition and control the market when you have explicitly said in public that’s exactly what you want to do.
One other problem: there’s a little something called the Uniform Computer Information Transactions Act, or UCITA, a model law that makes purchase of software a point-of-sale transaction, which means the first-sale doctrine applies. True, it’s only been passed in Maryland and Virginia…but under that law, any anti-used games measures would be worthless, because the EULA is unenforceable. In theory, this would mean that games purchased in Virginia or Maryland could not be subject to the anti-used game features: it’s a direct violation of the first-sale doctrine.
But what if you download a game? SOL, right? Nope. Actually, judges have shown a strong preference for treating digital files with the same consumer doctrine: a good example is a recent case involving used MP3s.
This only applies to the US: the EU and Japan have entirely different copyright rules, naturally. But, despite not being lawyers, looking at this makes it seem an awful lot like Sony and Microsoft are essentially debating breaking the law with their console and just hoping no one notices.
image via Moe_ on Flickr