Judge Rules Against Pre-Owned Digital Sales

[man-man]

Can't help but notice that none of the options really quite work. First sale says we should be able to re-sell that which is ours, but that was written under the assumption that there was no easy way to sell a thing and still retain ownership yourself. For the law as written, this was probably the right determination - copyright allows the copyright owner to forbid anyone else from making copies, and be damned whether it's your property to sell on.

But then, we allow re-sale of all kinds of other copyright works (CDs, DVDs, etc) where the bit-pattern somehow feels more strongly tied into the physical medium, even though with a few minutes work you could make yourself a copy of those. And there's a fair point to be made about passing on your license, in which case you may be provably giving up your ability to access the content in question.

Root problem is trying to treat copyright as a property right - it isn't, it's a monopoly right awarded to the author, which was only enforceable when copying things was difficult and expensive to achieve. Now that it's cheap and ubiquitous the law is playng catch-up trying to plug up the holes.

A truly exclusive right over copies would forbid you from copying media from your hard drive into memory to play it, so that's out. Wouldn't it be better to swing hard the other way? Admit the reality that is the digital world (copying is not something that can be controlled any more) and if your business model can't cope with that, you're out of luck.

 

[Abomination]

You know, the gaming consumer wouldn't worry so much about this if the price of games reflected the fact they are now digital licenses rather than actual products with a resell value. So a $60 should really be going for $40 at the most...

Then again is that why XBox and Playstation titles tend to be more expensive on consoles? Because they have a resell value? But because of that resell value and the initial value of a new game aren't the publishers cutting their own throat as a high price will do nothing but encourage 2nd hand games?

It seems to be a case of wanting to have a cake and eat it too on the publisher's side. They want this zero-reproduction value product that sells for $60.00 a head with systems that prevent it from being used by more than one user at once BUT they don't want people to be able to resell the product. They want the item to function just like any other product without actually being a product for resell purposes and having next to zero physical production costs.

Something's gotta give. Valve seems to be ahead of the trend with the frequency of sales and the reduction in price of its games - so they at least have that part going for them but there's only so much the DISTRIBUTOR can do when publishers impose the price points and even regional pricing.

 

[Entitled]

Root problem is trying to treat copyright as a property right - it isn't, it's a monopoly right awarded to the author, which was only enforceable when copying things was difficult and expensive to achieve. Now that it's cheap and ubiquitous the law is playng catch-up trying to plug up the holes.

A truly exclusive right over copies would forbid you from copying media from your hard drive into memory to play it

A billion times this.

On a technical note, it's not so much "not excusive", as "not absolute".

The US Constitution really does claim that creators hold Exclusive Right to their work, but the word "exclusive" doesn't imply that they hold "every concievable right" that could be made up, with no limits, (that would be absolute control), just that they have certain monopolies that belong to them exclusively (that is, not to other sellers). But as far as we can tell, that could be used to refer to "an exclusive righ to sell physical copies", or "an exclusive right to sell related merchandise", or "an exclusive righ to air a show to the public with advertisement support", while not guaranteeing OTHER exclusive rights (like control over Fair Use, or overtime lenght until Public Domain), therefore no total control.

 

[Little Gray]

Combine that with DRM platforms incapable of resale

Irrelevant, as a court could order a company with such a platform to modify it. This isn't without precedent.

Well actually they cant.

See, this is where I agree with the ruling: It is completely reasonable. The file does exist twice, the moment it is given to the "new owner" and there is nothing stopping you from keeping a copy yourself either. Both technically and morally, the idea of reselling a file is wrong.

Yes because tape recorders are a figment of our collective imagination and never existed in the pre digital era.

The difference between tape recorders and the digital era is that the digital era has a much easier to track paper trail. Sure in the past you could copy your tapes or burn a cd and then sell it but that does not mean it was allowed or that those companies didnt try to stop it.

 

[josemlopes]

But isnt the thing that you buy the key and not the actual content? If you sell the key even if you have the content copied in your PC you cant play it, the thing is I get why someone would want to sell a game (key) but to buy one used? It doesnt have less value then a new one meaning that the price would be the same, so why not buy the actual game new? The publisher doesnt need the key back because key are unlimited.

Because people will invariably end up charging less despite your perception of "value".

To be honest while there are some Steam games that I would like to get rid off I do think that there might be some weird consequences due to selling used-digital content. For example why would you ever go to Steam to buy the content new if you could go to the "online Steam used-store thingy" and get the same exact content cheaper?

Used content in the real world are most of the time cheaper because the fact that it was used means that it isnt in perfect conditions, in here it could become a "I dont want this anymore and I'll take anything for it" thing, kind of like on Ebay.

That means that there could be a huge amount of really cheap used games due to the amount of games that people buy on Steam Sales in bundles and shit... (seriously, a lot of people have quite some games that they arent even planning on playing) so now there would be a place that would make Steam Sales (and their deal of the day and weekend) seem like a time to buy cheap to then sell with a price in between the original one and the one on sale (people that missed the sales or are new to Steam would be the targets)

Im just afraid that some issues might appear out of the result of this change due to the fact that this industry is changing a lot with time without anyone that actually seems to understand it... or something...

Spoiler

Like seriously, I dont know where I am trying to go with this

 

[rofltehcat]

I wonder what this will mean for different countries? If I'm not mistaken, Valve etc. still have to make resale of steam games possible, as ruled by the EU court (Oracle vs. UsedSoft). Though I do not know whether they still can/have to pass through a higher instance...
From the articles I've found, Steam still doesn't plan to change anything about their policy.

Will be a very interesting situation in the future if resale is allowed in EU (somewhen they'll have to pay a hefty fine) but forbidden in US.

 

[Epona]

See, this is where I agree with the ruling: It is completely reasonable. The file does exist twice, the moment it is given to the "new owner" and there is nothing stopping you from keeping a copy yourself either. Both technically and morally, the idea of reselling a file is wrong.

This, however, has nothing to do with resale of used games (which is probably gonna be the most prevalent of reactions in this thread) that were acquired digitally. Games aren't sold as products anymore, but as binding licenses. For better or worse. This also means, however, that resale of a license can be doable. Technically, as well as morally as well as legally.

By that reasoning, wouldn't you be guilty of violating copyright by moving songs from iTunes to your iPod or something similar with the non-Apple equivalents?

Reproduction for your own use is legal. As in: Both copies remain in your hands.

Resale of CD's is legal and it's probably easier to make illegal copies of CD's. After all, a CD will never have a DRM check.

 

[Doom972]

That's due to the way ReDigi works - You upload a file (which you retain a copy of) and sell the download of it to someone else.
It could work on a system like Steam has, in which having the files won't matter unless your Steam account has the game.

 

[ScrabbitRabbit]

See, this is where I agree with the ruling: It is completely reasonable. The file does exist twice, the moment it is given to the "new owner" and there is nothing stopping you from keeping a copy yourself either. Both technically and morally, the idea of reselling a file is wrong.

This, however, has nothing to do with resale of used games (which is probably gonna be the most prevalent of reactions in this thread) that were acquired digitally. Games aren't sold as products anymore, but as binding licenses. For better or worse. This also means, however, that resale of a license can be doable. Technically, as well as morally as well as legally.

By that reasoning, wouldn't you be guilty of violating copyright by moving songs from iTunes to your iPod or something similar with the non-Apple equivalents?

Reproduction for your own use is legal. As in: Both copies remain in your hands.

Resale of CD's is legal and it's probably easier to make illegal copies of CD's. After all, a CD will never have a DRM check.

CDs did actually have DRM a few years ago. [http://en.wikipedia.org/wiki/Digital_rights_management#Audio_CDs] Sony BGM CDs could even install a rootkit onto your computer. As you can imagine, this did not go down well.

Modern CDs never really have DRM on them, though.

I don't mind not being able to resell my digital music and games, but I do wish I could deregister Steam games that I bought physical copies of and sell them. Imagine if CDs were permanently tied to an Amazon or iTunes account... actually I'd better shut up before I give them ideas...

 

[Epona]

See, this is where I agree with the ruling: It is completely reasonable. The file does exist twice, the moment it is given to the "new owner" and there is nothing stopping you from keeping a copy yourself either. Both technically and morally, the idea of reselling a file is wrong.

This, however, has nothing to do with resale of used games (which is probably gonna be the most prevalent of reactions in this thread) that were acquired digitally. Games aren't sold as products anymore, but as binding licenses. For better or worse. This also means, however, that resale of a license can be doable. Technically, as well as morally as well as legally.

By that reasoning, wouldn't you be guilty of violating copyright by moving songs from iTunes to your iPod or something similar with the non-Apple equivalents?

Reproduction for your own use is legal. As in: Both copies remain in your hands.

Resale of CD's is legal and it's probably easier to make illegal copies of CD's. After all, a CD will never have a DRM check.

CDs did actually have DRM a few years ago. [http://en.wikipedia.org/wiki/Digital_rights_management#Audio_CDs] Sony BGM CDs could even install a rootkit onto your computer. As you can imagine, this did not go down well.

Modern CDs never really have DRM on them, though.

I don't mind not being able to resell my digital music and games, but I do wish I could deregister Steam games that I bought physical copies of and sell them. Imagine if CDs were permanently tied to an Amazon or iTunes account... actually I'd better shut up before I give them ideas...

I remember the Sony rootkit fiasco. CD's and DVD's are among the easiest to make illegal copies of but resell is not restricted. I am just saying that there is no reason to stop resell of digital downloads because most of those have DRM checks.

 

[Voltano]

So, if its illegal to distribute a digital product to another person (either through marketing or relational purposes) because you can still own a copy of the product. Then why is it legal for the developer to sell their same digital product to us while still keeping the original they worked on and are making copies of to sell?

That's where the situation gets a bit more questionable for me. I can respect the work and time that goes into making a product, but in the original market before digital distribution a developer lost the copy of their product when they distributed it in any way. A baker makes bread and sells it, earning income but loses bread. That's how trading works. But with digital distribution, a programmer/musician/game designer can retain the original copy of their product but still request money in the traditional trading process.

I guess you could say that you are only selling a "license" to a particular product. But that implies restrictions on the product. You can't copy it; deconstruct it; and you can't share it. That sounds like you are giving access to an amusement park or a museum, where you retain the product but offer it as a "service". But you still offer the product with minimal licenses until people abuse it. So you restrict access to the museum/amusement park/product by keeping it open for a fixed duration, such as only being open in the morning and allowing 50 people in the building to play it. Sounds like you would need some kind of server to run the product on if you were going to maintain that kind of licensing.

Wait, I think EA answered my question on how that would work. Hrm...

 

[Falterfire]

So, if its illegal to distribute a digital product to another person (either through marketing or relational purposes) because you can still own a copy of the product. Then why is it legal for the developer to sell their same digital product to us while still keeping the original they worked on and are making copies of to sell?

There's a fundamental difference between the person making the content receiving money for multiple copies of their work and you making money from reselling. Both a 'used' and a new digital sale are identical from the consumer's perspective, the difference is who makes the money. You have not done any of the work here, and you aren't even losing anything in the transition, whereas the person who made the product spend large quantities of time constructing the product. Ultimately when you buy a song/game you're not paying for the data itself but what the data is. Five minutes worth of random static takes the same amount of time/effort to reproduce/store/copy as a five minute song, but you're not paying for the ingredients.



Important note: With songs, this is a definitely illegal business model for a very simple reason: There is absolutely no way to be sure the seller isn't selling infinite 'used' copies that were never legitimately paid for. You may or may not agree with the consumer being able to make money via first sale, but surely you agree that a company shouldn't be able to make money on fifty sales of the same song? (That they didn't make and were in no way responsible for)

 

[Some_weirdGuy]

Okay, let's leave aside whether or not you agree with the judgement in principle, either due to what a used digital market would do to the actual market, or any other reason.

The justification used by the judge is still the flimsiest horseshit I've ever heard.

It's illegal because copying of files is necessary to transfer it? WELL OF COURSE IT FUCKING IS! IT'S A FILE! THE ONLY WAY TO TRANSFER IT IS TO COPY IT!

Just another example of why the wording and terminology of digital copy-right law is utterly bonkers, outdated and unusable.

You're missing the point. What you're saying is exactly right, the ONLY way to transfer it is to copy it.

When you sell a physical copy of something, there is an actual product, it is created, you buy it, you then resell that same unit to someone else, not a copy of that unit, but the original unit itself.

Selling a copy of that unit on the other hand is illegal, you aren't allowed to burn a copy of a dvd you've bought and then sell it.

So digital resale, by it's very nature, is illegal... and flawed.

Cause lets be honest here, 'used' digital content? Used games and stuff are cheaper cause their disks are scratched up and their packaging is all trashed and their instruction manuals have penises drawn all over them, (and as mentioned, it is still an original unit, only the copyright holder being allowed to make and sell copies of their own product).

Digital doesn't really work like that, there's no degradation to warrant a price reduction(in which case, why buy at the same price if you can get it 'new'?), and there isn't really a way to stop the previous owner keeping a copy of what they're 'reselling'. You could get pre-owned serial numbers with games, that makes some semblance of sense, but used songs? O-o

 

[Epona]

Okay, let's leave aside whether or not you agree with the judgement in principle, either due to what a used digital market would do to the actual market, or any other reason.

The justification used by the judge is still the flimsiest horseshit I've ever heard.

It's illegal because copying of files is necessary to transfer it? WELL OF COURSE IT FUCKING IS! IT'S A FILE! THE ONLY WAY TO TRANSFER IT IS TO COPY IT!

Just another example of why the wording and terminology of digital copy-right law is utterly bonkers, outdated and unusable.

You're missing the point. What you're saying is exactly right, the ONLY way to transfer it is to copy it.

When you sell a physical copy of something, there is an actual product, it is created, you buy it, you then resell that same unit to someone else, not a copy of that unit, but the original unit itself.

Selling a copy of that unit on the other hand is illegal, you aren't allowed to burn a copy of a dvd you've bought and then sell it.

So digital resale, by it's very nature, is illegal... and flawed.

Cause lets be honest here, 'used' digital content? Used games and stuff are cheaper cause their disks are scratched up and their packaging is all trashed and their instruction manuals have penises drawn all over them, (and as mentioned, it is still an original unit, only the copyright holder being allowed to make and sell copies of their own product).

Digital doesn't really work like that, there's no degradation to warrant a price reduction(in which case, why buy at the same price if you can get it 'new'?), and there isn't really a way to stop the previous owner keeping a copy of what they're 'reselling'. You could get pre-owned serial numbers with games, that makes some semblance of sense, but used songs? O-o

I thought the objection to reselling digital content was that a copy could be made and kept by the original owner. Well, that's possible and even easier to do with physical digital products than it is with downloaded digital content.

 

[Epona]

i will say its interesting watching people, businesses, and the law get their heads around post scarcity items like digital products

Well, by nature digital products are infinite and therefore have no rarity and value is subjective.

 

[RJ 17]

Ummmmmm....question:

Is there anything to stop someone from making a copy of a file/program/whatever - perhaps onto a separate harddrive - and then just selling the original?

If not, there's no way this could possibly be legal.

 

[hentropy]

There will come a day when all of this is decided. The idea of ownership over something digital is something so incredibly new and unprecedented. I pity the judge who has to try and judge this stuff based on current laws, which are currently outdated as they weren't written with exclusively digital media in mind.