Saturday, August 28, 2010

Should Used Games be Supported?

While I’m not of the opinion that buying used games is the equivalent of piracy, I certainly do agree that it’s bad for the business of making games. As a general rule, I think it’s safe to assume that the original manufacturer profits little to not at all when you buy or sell a game used.

I’m also not going to argue the legality of it. You can buy and sell used games. That’s not in question.

It’s true that a software license is simply a license to use and while that license gives you no ownership of the actual intellectual property, it does give you license to use the product. You agree to those terms when you install the product.

There is quite a bit of case law that exists for Copyright and Software. And some of it even says that one of the things Software companies can’t do is enforce a term that limits your ability to transfer the license to another party. It’s viewed in the same way that Books or Music copyright is administered.

BUT – unlike Books or Music, Software often needs to be supported long after the initial purchase or sale. This support comes in the form of patches and game updates. And, in many cases, some online service component that the game provides for multiplayer access.

Now the question I would raise is whether or not the right to continued support is something that should be transferable with that license to use?

I don’t think so.

In my mind, the right to use and the right to support are two separate items. Copyright law supports your right to use. It doesn’t support your right for support.

As I see it, a gaming company should be entirely within their right to provide a key for this support with the original purchase and then deny that key to anyone purchasing the product on the secondary market. There are plenty of examples of non-transferable warranties for non-software products.

To me, that’s entirely fair. If you buy a used game, then you buy an unsupported game.


Sjonnar said...

I dunno about that. Whether transferring a license or a piece of property, (and I'll always argue property; I bought the game with the expectation that I would own said game upon payment to the vendor) the fact remains that you are transferring it, not copying it. You forfeit ownership and someone else acquires it; one sale, one copy in circulation, one end user.

If companies should choose not to support used games, I believe the free market will take care of that in time. Used game markets will refuse to buy games that will not be supported in the future, and so fewer people will purchase the game new, knowing that they cannot resell it if they do not like it. Depending on the percentage of the intended market that refuses the game, the monetary punishment for this kind of behavior may be severe enough to put a stop to it.

That being said, though I disagree with your opinion, at least you made a rational argument, as opposed to 'Anyone who buys a used game is a PIRATE and a THIEF!!!11'

Scott said...

There have also been court rulings saying the whole "buying a license" thing is bogus. Those EULA's we love to quote are completely unenforceable.

Isn't what you're saying more or less the tactic EA has started using? People who bought Mass Effect 2 or Dragon Age: Origins have immediate access to all DLC via a code in the box. People buying it used do not, but for roughly $10 they can "buy in" and have that access. The system is currently a bit confusing (at least on XBL, and that may not be EA's fault) but I prefer opening things to customer choice rather than Ubisoft requiring a constant online connection.

Just a thought towards the "software and patches" though. Not all software gets patched. Not all of that which does gets comprehensive patches.

The previous book I finished was by a long-time professional author and professionally edited and published, yet still had several typos. If a revised edition is published (who knows, maybe when we're all digital they can stream fixes?) correcting those, is that considered "support?"

What about musicians who may remaster or re-record one of their own songs? Isn't that "patching" their song, in a way?

Song7 said...

This sounds like the most reasonable method of deterring multiple purchases of one "boxed/jewel-case/ROM" . To be honest, I see methods like Steam being the only future of PC gaming purchases. It's a win/win situation. If the consumer can wait it out they will be able to buy a $60 game for $40-30 and the people that designed the game get something instead of nothing.

As for the consoles, something similar will need to be used. Maybe, as the cost to produce USB/SSD storage drives goes down there will be a way for consoles(and maybe PC) developers and publishers to limit the amount of "owners" one copy of their game can have. Since that form of media can easily be written to opposed to say CD/DVD ROMS.

sid67 said...

@Scott: There have been court cases that have said that limiting a person's ability to transfer ownership of the license is bogus, but the license itself is protected under Copyright Law. And as such, the terms in the EULA are very enforceable and even punishable by criminal action (prison time & fines).

That's part of what was so scary about Blizzard v. MDY (Glider). The court effectively said that Blizzard could include certain terms in Terms of Use (a separate legal document) in the EULA (the one protected by Copyright law) and upheld the idea that YOU do not own even the copy loaded into your computer's memory and any alterations to that copy are a violation of Copyright Law.

That said, my main point is that I think recent approaches by EA and THQ to limit support to second-hand owners is an appropriate and legal one.

Why should a company be indebted to provide ongoing support for a product you didn't pay them for?

Anonymous said...

"Why should a company be indebted to provide ongoing support for a product you didn't pay them for?"

Because someone paid for it initially, and they promised support for the game, not the purchaser?

...not that I know how many actually promise that, but that's one answer to the "why" question.

sid67 said...

Because someone paid for it initially, and they promised support for the game, not the purchaser?

No. They promise support to the original owner for as long as the original owner wants it.

Why should they be promising to provide ongoing to the original owner for as long as he wants it then the secondary owner for as long as they want and then the tertiary owner for as long as they want it and so on?

Song7 said...

It is the companies responsibility to fix a broken game that a person paid for. Whether or not it's the companies choice to support it past the original purchaser is the question Sid brought up.

It's not as much a problem today, but back in the early 2000's(when the internet became commonplace in most gamers homes) it was common for devs to release a patch the day of release that would fix things they didn't have time to put into the ROM.

This is a pretty damn good concept Sid. It solves a lot of concerns in one fell swoop. I hope something like this comes along.