wetfart said:
I can see this going to court in the US due to the First-sale Doctrine and Microsoft losing.
I wish it were that easy. Unfortunately it's not. The courts have no precedent for games, and technically First Sale Doctrine only applies to products not services or licenses. Most games put a ToS that consider that you are buying a "license" to the game, not the game itself, and First Sale Doctrine has no good precedent for situations like this.
The same situation applies in those games that bill themselves as services (note: the license/service isn't mutually exclusive, most ToS contain verbiage for both -- the license for the client software, the service for actually being able to play).
Now, what's unclear is whether games can conceivably bill themselves are services/licenses instead of products and THAT will be the deciding factor in the court room. The only standing precedent (currently in appeal) is the sale of 'used' MP3s, which a lower court found was not legal, but of course is being appealed.
Microsoft will likely go under the "service" route, claiming that the Xbox One provides services, requiring a daily internet check in, and that you get some 'benefit' out of that, likely in the form of software updates. The other, less tasty parts of the service are what you agree to use the 'service,' the used game provision being one. Basically, when this goes to court, it will be on the onus of the plaintiffs (read: gamers) to show that games are actually discrete products and First Sale doctrine applies, OR say that license/service agreements can also apply under First Sale Doctrine.
To be blunt, the First Sale Doctrine wasn't written to accommodate this kind of situation. It's that lack of accommodation that publishers and console creators are trying to exploit to increase profits.
