Guess What, You Don’t Own That Software You Bought (Wired)This may not be good news for eBay seller's and buyers on a budget but I absolutely agree with this ruling. When you buy software, you aren't buying the software but a LICENSE-TO-USE that software. As such, I feel a company is well within their rights to limit any transfer of that license to a 3rd party.
The 3-0 decision by the 9th U.S. Circuit Court of Appeal, if it stands, means copyright owners may prohibit the resale of their wares by inserting clauses in their sales agreements.
“The terms of the software license in the case are not very different from the terms of most software licensing. So I think it’s safe to say that most people don’t own their software,” said Greg Beck, the defense attorney in the case who represented an eBay seller sued by Autodesk. “The other ramification, there is no reason a similar license could not be put into the cover of a book. It wouldn’t be difficult for everybody to implement this.”
The more immediate ramification for consumers is that the discounts provided by a secondary market go away. But the longer term ramification is that the companies and individuals producing this software will be more justly compensated. That means they are more profitable and better able to continue to provide more of those types of products.
If I have a concern here it's the ramification to other Intellectual Property like books. A lot of books go out of print or have limited print runs.
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Do you truly believe that game developers will now produce better quality products as a result of this ruling? And I thought that I was a naive person.
Let me tell you what I think will happen: This ruling will result in a massive spike in actual piracy, for two reasons.
The first reason is that, with the used game market gone, players who want inexpensive games will be forced to wait months or even years for the prices of new games to drop to an affordable level. Meanwhile, pirated versions will hit torrent sites within weeks at most. Considering the average consumer's deeply ingrained sense of entitlement, a large portion of these people will opt for 'free game now' as opposed to 'cheap game two years from now'.
Second, a very large percentage of gamers will be very angry upon hearing that they don't own the software they paid hard-earned money for. They will make the decision to, rather than pay Big Videogames $60 for their 'permission' to play, pirate a game, and thus 'own' it.
Therefore, with piracy 'suddenly' on the rise, game developers will spend even more time on intrusive and frustrating DRM, thus lowering the cost of new titles, and will pass along the increased costs of DRM development to legitimate buyers, thus raising prices. So quite the opposite of recieving higher quality for less, legal customers will get lower quality for more.
Ergo, I will not be buying any more games until this ruling is overturned, and I hereby withdraw all past condemnations of pirates and software piracy. Yo Ho Ho and a bottle of rum, boys. Go get busy.
'...DRM, thus lowering the cost of new titles...'
That should have been 'thus lowering the quality of new titles. oops.
Oh, I absolutely agree on the piracy thing. It's also unlikely to stop the secondary market entirely.
And no.. I don't think we'll see "better" games as a result but I do believe we'll see more games.
In any event, that's not really my point as to why I think it's a good ruling. Namely, I think it's a fair ruling about WHO OWNS THE Intellectual Property.
What do you own? You own a license to use. And a license is not a free card to do whatever the hell you want with the software.
That said, I do have some issues with how licenses are protected by copyright law. Namely, that it's a criminal offense to violate terms of the license.
It rubs me wrong that what amounts to a CONTRACT between you and the developer is enforceable by prison time and fines. No other CONTRACT is protected that way.
That's what was really bothersome about the Blizzard v. MDY case. The ruling there was that language in the "Code of Conduct" is to be considered part of the license.
So, as an extreme example, you could now make a legal case that "swearing" in an MMO is a violation of Copyright.
"But the longer term ramification is that the companies and individuals producing this software will be more justly compensated. "
No they won't. They'll get no more than they do currently. Probably less.
If I can no longer get a rebate on my $60 game purchase by transferring that license to another party then...
1. I'll be a lot more choosy about which games I buy and
2. I will buy fewer games.
Also sjonnar is correct, expect an increase in piracy.
@Mike:
How do you possibly figure that?
Consider that everyone buying full price will continue to buy full price. Since they received ZERO compensation from the used sale, there is no lost revenue from those sales.
And if just *1* of those people who would have bought the game used instead buy it new -- well, that's a positive outcome for the software developer.
Let's take a hypothetical situation with four gamers each representing what I believe is rational consumer behavior.
Each month, Gamer "A" always buys a New game for $60. Gamer "B" and "C" like to buy two Used games for $30. And Gamer "D" likes to wait until the retail price of a game is discounted off the full $60 (down to $40 or even $20). Gamer "D" doesn't want to buy Used, but he also doesn't want to buy full price.
Under this scenario, the devs (and retail distributors) net $60 from Gamer "A" and $40 from Gamer "D". They net nothing from B and C who made purchases in the secondary market.
Now let's take Used games out of the equation.
Gamer "A" still buys new, Gamer "D" still buys a discounted copy. Gamer "B" is pissed off and just decides to pirate it. But Gamer "C" decides to act like Gamer "D" and buy a retail copy when it eventually gets discounted for $40.
The net upside for the developer is +$40 even with one gamer choosing to pirate the game.
@Sid:
Dude, did you read his response? He very specifically said that if he could not resell games, he would buy fewer games and be more choosy about the ones he buys.
Here's the scenario:
If inital purchasers (A) and (B) buy a game new for $60 and then (A) sells it used to secondary market (C) for $40, the game company recieves $120.
If (A) instead realizes that he cannot legally resell the game, he makes the decision not to buy, since he no longer has a legal avenue to recoup part of the loss in the event he dislikes the game. Further, (C), who could afford $40 for a used game, but not $60 for a new one (or was instead unwilling to pay more than $40 for a game), buys no game. Only (B) buys the game. The developer recieves $60.
Then, (A) discovers that he can download the game from a torrent site for free. He does so, and the rise in piracy is noted by the game company. Their next game ships with some annoying DRM designed to combat piracy. The increased development cost of the DRM software drives the price of the new game up to $65, and the DRM pisses off players, thus lowering the quality of the game.
(A) pirates this game, as he did the last one, and discovers that not only is the game free, it lacks the annoying DRM. He shares this information with (B) and (C). (B) decides to pirate the game, because why pay $65 for a lower-quality game when you can get a higher-quality version for free. (C) refuses to pirate the game because piracy is stealing, but he also will not pay $65 for a game, especially not one with restrictive DRM. The game company sells no games and thus makes $0. Furthermore, they spent extra money to develop the 'anti-piracy' DRM.
If (A) instead realizes that he cannot legally resell the game, he makes the decision not to buy, since he no longer has a legal avenue to recoup part of the loss in the event he dislikes the game. Further, (C), who could afford $40 for a used game, but not $60 for a new one (or was instead unwilling to pay more than $40 for a game), buys no game. Only (B) buys the game. The developer recieves $60.
There is truth in that and I would agree that it's worth amending that (A) resells to (C). And (B) represents the group that doesn't resell at all.
BUT -- keep in mind that I am making no claims as to the size of any of these groups. I would hazard that (B) is the majority.
And you are also assuming that no (A)s would choose to buy it anyway or wait for a discounted price.
I would argue that all rationalizations, boycotts, and angry rants aside -- when push comes to shove, people will cave to their impulse and buy the game for no other reason than because they want to play it.
@Sid:
I'm not assuming anything. (A) is Mike. He said straight out that he would not buy as many games if he couldn't resell. (Mike may actually be a combination of (A) and (C). He may not choose to pirate the game. Perhaps I should have included a (D).) (C) is me. I'm also not going to buy new games that I cannot resell if they turn out to be shit, or if they contain features that I disapprove of (looking at you, Starcraft 2). Only I won't pirate them either.
However, I'm no longer going to condemn piracy, as every pirated game is a vote against the 'new order' of gaming.
@Sid: 'I would argue that all rationalizations, boycotts, and angry rants aside -- when push comes to shove, people will cave to their impulse and buy the game for no other reason than because they want to play it.'
Those are the ones that will pirate the game, I think. Like I said, why buy a lower-quality game for more money if you can get a higher-quality game for free?
Sorry for the double post. I forgot to address that last point.
The groups describe the different possible behaviors. But what they don't describe is the size of those groups.
Now I think where we disagree is that you believe there are lots of Mikes while I think that's a much smaller group.
As for piracy.. I think the idea that "gamers are driven to piracy by expensive games" is grossly overstated as a cause of piracy.
I would argue that people DON'T pirate games for lots of reasons that have nothing to do with price.
1) they don't know how, or
2) they find that pirated games are buggy or lack features, or
3) they don't want to break the law, or
4) they find theft morally objectionable, or
5) they believe it's a security risk.
I would go even further and say that if someone has no qualms or problems with any of those issues -- THEY ARE ALREADY PIRATING GAMES.
I would also argue that, for most people, $20 is just not enough money to eliminate the qualms that the average Joe might have about pirating games.
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