A point of contraversy (part 1) - Buying a game used is as bad as pirating?

[UbarElite]

Ok, here is the thing, buying used is not as bad as pirating.

When you pirate, you get something you did not pay for.

When you buy used, you gain something that the developer and publisher has already been paid for, and the original owner loses it.

This is more or less the same situation that would occur if the original owner kept the game. Even if the game utilizes online features that take the publisher's bandwidth we still have the situation where one person stopped using it and now another person is.

If he kept the game and continued playing it, it would be no different than if he sold it when he felt it would not have any value to him anymore.

If developers want to sell more new games, they are going to have to cut prices over time (much faster than they do now) in order to squeeze out the middlemen of gamestop et all. People can still sell games themselves and more or less keep up, but gamestop is going to be at a loss since they bought the game at a higher price.

 

[WaruTaru]

*sigh* The law does not say you bought a license. The EULA, which doesn't even come into play until after the sale has occurred, says that. Further, the law on the matter hasn't changed since the 70's. This isn't something congress did; it's something the lawyers of software companies are trying to get the courts to do. Seriously, man, if you're going to argue this stuff, do yourself a favor and do the research.

And the courts upheld the EULA. You bought a license, not goods. I don't see any licensing in the 70's. Do you?

No, its something the courts did. Lawyers can only go so far, and if the courts says no, they are right. If they say yes, they are right too. And you know what? They said yes.

I've done all the research and showed that you bought a LICENSE. You are just too pigheaded to accept it.

 

[Owyn_Merrilin]

*sigh* The law does not say you bought a license. The EULA, which doesn't even come into play until after the sale has occurred, says that. Further, the law on the matter hasn't changed since the 70's. This isn't something congress did; it's something the lawyers of software companies are trying to get the courts to do. Seriously, man, if you're going to argue this stuff, do yourself a favor and do the research.

And the courts upheld the EULA. You bought a license, not goods. I don't see any licensing in the 70's. Do you?

No, its something the courts did. Lawyers can only go so far, and if the courts says no, they are right. If they say yes, they are right too. And you know what? They said yes.

I've done all the research and showed that you bought a LICENSE. You are just too pigheaded to accept it.

Some courts uphold it, some don't, and it also depends on the nature of the license (e.g., Autodesk has a better legal argument than, say, Activision, since the license was a condition for money to change hands in the first place, instead of something that was agreed upon after a clear sale occurred[footnote]This is an important point: nobody is arguing that something that requires a license to be agreed to before money changes hands, such as what Steam does, or what many software companies that make products intended only for large corporations do, is not a valid license. The argument is whether a clickwrap agreement which only shows up after money has changed hands, ala pretty much all software sold in brick and mortar stores, is valid. If any common sense is applied at all, it wouldn't be, because it clearly wasn't a part of the contract of sale. You can't go adding terms to a contract after it's already been agreed upon.[/footnote]) Further, no case on the matter has gone to the Supreme Court yet, and we don't know how they'd rule on the matter, so to argue that the law says it's just a license is pretty silly. The courts have not fully decided -- far from it, the case law is highly conflicting.


As for Vernor V. Autodesk in particular, there is a good chance it will be overturned on appeal -- it's already happened once with that specific case, when the 9th circuit[footnote]A court which, due to it's proximity to both Hollywood and Silicon Valley, heavily favors both the software industry and the entertainment industry, despite being pretty pro-consumer in most other ways.[/footnote] overturned the District Court's ruling, which said that even though the license was agreed upon before the sale was made, it was still a sale, because the stipulations in the license didn't match up to a license agreement in anything but name. In other words, there is such a thing as a contract that is not legally enforceable, and the 9th circuit is not the best one to point to a decision from, because they've shown a bias in this area that isn't matched by the rest of the legal system. To conclude, this is not an area of law that has been firmly decided in the direction you're saying it has.

 

[WaruTaru]

Some courts uphold it, some don't, and it also depends on the nature of the license (e.g., Autodesk has a better legal argument than, say, Activision, since the license was a condition for money to change hands in the first place, instead of something that was agreed upon after a clear sale occurred[footnote]This is an important point: nobody is arguing that something that requires a license to be agreed to before money changes hands, such as what Steam does, or what many software companies that make products intended only for large corporations do, is not a valid license. The argument is whether a clickwrap agreement which only shows up after money has changed hands, ala pretty much all software sold in brick and mortar stores, is valid. If any common sense is applied at all, it wouldn't be, because it clearly wasn't a part of the contract of sale. You can't go adding terms to a contract after it's already been agreed upon.[/footnote]) Further, no case on the matter has gone to the Supreme Court yet, and we don't know how they'd rule on the matter, so to argue that the law says it's just a license is pretty silly. The courts have not fully decided -- far from it, the case law is highly conflicting.


As for Vernor V. Autodesk in particular, there is a good chance it will be overturned on appeal -- it's already happened once with that specific case, when the 9th circuit[footnote]A court which, due to it's proximity to both Hollywood and Silicon Valley, heavily favors both the software industry and the entertainment industry, despite being pretty pro-consumer in most other ways.[/footnote] overturned the District Court's ruling, which said that even though the license was agreed upon before the sale was made, it was still a sale, because the stipulations in the license didn't match up to a license agreement in anything but name. In other words, there is such a thing as a contract that is not legally enforceable, and the 9th circuit is not the best one to point to a decision from, because they've shown a bias in this area that isn't matched by the rest of the legal system. To conclude, this is not an area of law that has been firmly decided in the direction you're saying it has.

If you are going to wait for the Supreme Courts to have a final say on this matter, this argument is at its end. Until the Supreme Court overrules it, Vernor remains as the applicable law to software and licensing, which is to say, software are still not goods, and you bought a license.

 

[Owyn_Merrilin]

Some courts uphold it, some don't, and it also depends on the nature of the license (e.g., Autodesk has a better legal argument than, say, Activision, since the license was a condition for money to change hands in the first place, instead of something that was agreed upon after a clear sale occurred) Further, no case on the matter has gone to the Supreme Court yet, and we don't know how they'd rule on the matter, so to argue that the law says it's just a license is pretty silly. The courts have not fully decided -- far from it, the case law is highly conflicting.


As for Vernor V. Autodesk in particular, there is a good chance it will be overturned on appeal -- it's already happened once with that specific case, when the 9th circuit overturned the District Court's ruling, which said that even though the license was agreed upon before the sale was made, it was still a sale, because the stipulations in the license didn't match up to a license agreement in anything but name. In other words, there is such a thing as a contract that is not legally enforceable, and the 9th circuit is not the best one to point to a decision from, because they've shown a bias in this area that isn't matched by the rest of the legal system. To conclude, this is not an area of law that has been firmly decided in the direction you're saying it has.

If you are going to wait for the Supreme Courts to have a final say on this matter, this argument is at its end. Until the Supreme Court overrules it, Vernor remains as the applicable law to software and licensing, which is to say, software are still not goods, and you bought a license.

Then I guess we're done here. Not only has the Supreme Court not ruled on Vernor yet, they haven't ruled on the subject at all. Most of the rulings in favor of click wrap agreements have come through the 7th and 9th circuit courts, and interestingly enough, as far as I can tell they all were cases that overturned a ruling at a lower court, rather than re-affirming it. If the Supreme Court doesn't weigh in on Vernor, they're going to have to eventually -- this is an area of law that absolutely needs clarification.

 

[Baresark]

Wow, and the debate carries on. What the court says now is almost completely immaterial, since those laws can be changed later. They are completely arbitrary. There are natural laws though, like ones that what I earn I keep. What I defend I have a right to keep. What is mine, is mine unless I give it to someone else.

How funny would it be if a super rich guy bought up a bunch of copies of a very popular game, then proceeded to give them all away. A resale is no different, the only difference being that more money exchanged hands. The company has been paid of it already, if you buy a license, you can give that license to someone else, but you cannot give it away and still use it. It's only good for that one product that is exchanging hands.

 

[Kenny Kondom]

Ok, ive re-read the entire thread, and some interesting points have come up that i have taken on board. I still dont believe the P/D's have the right of getting rid of the used game industry. It helps in many ways, as it PROMOTES the developers/publisher more if there are more people buying it in circulation, it is also promoting recycling of disks (im sure some would argue that WIPING the disk of the data before using it would be better on all grounds, but im still dubious about "Data not being a product", as it is essentially).

[BEFORE anyone gives me law quotes, or even Law text in general, I WILL hit you.... bloody hate Written Law documents.... *growls*]

HOWEVER, i can agree that maintenance of online play costs. To what extent, i have no idea, but i dont believe it is of higher value than of what the Used game industry draws in. So why not go along the lines of what Blizzard currently does for WOW?

Hell, for games like CoD, set up an INDEPENDANT multiplayer experience for those whom haven't paid an online fee. Take away the right to level up and prestige online, but leave certain pre-made classes open. This would give the player the right to indulge and actually see what the multiplayer experience is like, whilst (in terms of the developers) having a low maintenance project going which should not drain a lot of resources of the producer/developer.

(NOTE, it would be the basics ONLY. DLC wouldnt be available, and perhaps restrict the number of Maps too. A form of advertising if you will.)

But single player experiences? It shouldnt be restricted. The Dev/Pubs already made their money from the first sale to the retailers anyway. If there are bugs and problems that need updates for the game, then that is a quality control issue, and a fault of the developer anyway.

If any of this arguement is confusing, i apologise. I've been working on a Health and Safety at Work Law essay, and has fuelled my dislike of Law text to a greater height.... Grr...

Oh. And its 4 in the morning...

 

[Gethsemani_v1legacy]

The simple difference between pirating a game and buying a game used is that in the latter case you are spending money. That means the retailer is making money. According to basic laissez faire capitalism, the retailer is thus more likely to make investments (ie. purchase more games from the publishers) which will in turn promote the publishers to make more games and you as the customer gets a more diverse set of games to choose from (or cheaper games, but who am I trying to kid?).

The point is, that as long as money is being pumped into some level of the games distribution process above the customer level, the entire pyramid benefits. Game Stop might be making huge profits on used games, but it is in their best interest to use part of those profits to buy new games, since without new games they won't be getting anymore used games.

That's the difference in a nutshell: In one case money changes hands and thus it spins the wheel of the market economy. In the other, the market isn't involved at all.