The Supreme Court Might Be About To Shut Down Used Game Sales For Good
Used games are a point of contention between gamers who want to save a little money and game developers who worry about losing new sales to used games. But it may all be moot, if an obscure case that's about to go before the Supreme Court goes copyright holders' way. Here's what's going on, and why you should care.
All games you sell used, you're doing so under a provision of the law called the "first-sale doctrine". Essentially, under the law, yes, the contents of your game are under copyright to the publisher and developer. But the actual copy, the item itself you bought, is your property to do with as you wish. Sell it to someone else, use it as a coaster, whatever, it's yours, you own it free and clear. They can't collect on it, they can only, you guessed it, earn money on the first sale.
But there's a point of contention in the law: so far, in a fairly obscure case that centers around cheaper textbooks being imported, the courts have ruled that the first-sale doctrine does not apply to any copyrighted products manufactured outside the US.
How is this a problem for you, the gamer? Well, if this interpretation of the law holds, in order for you to sell these products, you'd have to get the permission of the copyright holders.
All of them.
Let's say you wanted to sell a copy of Assassin's Creed II. You'd have to get permission from Ubisoft, of course, but also Havok, since the game uses its copyrighted physics engine, and also the manufacturer of the console your copy is for, since it contains copyrighted proprietary information that allows the game to work with a specific device. If the game also had, say, Autodesk's Scaleform, Unreal Engine, Bink Video, or any of a host of other engines, libraries, plug-ins, and other chunks of programming that are extremely common in building video games, you'd have to get their permission as well.
The same would be true of consoles and controllers, which are almost always manufactured overseas.
Sure, if your game was made in the US, you could sell it, no problem. But all any game company would have to do to block used sales would be to get the game made in Canada or Mexico, and revoke all requests to legally resell it.
We want to emphasize that it's by no means certain that the Supreme Court will agree with the lower courts on this issue, or that video game companies would act this way. But if the Supreme Court does decide the lower courts are correct, it opens the door to precisely the scenario we're laying out here.
Want to do something about this? Write your Congressman; you can find out who that is right here. Remember to be polite; angry cursing will just be ignored. And spread the word: this affects everybody, gamer and non-gamer alike.