Do We Own The Right To Sell Used Games?

Do We Own The Right To Sell Used Games?

So the Xbox One supposedly doesn’t allow us to play used games?! Many gamers are complaining that the Xbox One has some major flaws already and one of them is the fact that the console must check into the internet every 24 hours and the other is the lack of a used game market. Well, we don’t exactly know how this will play out, but I’d like to discuss the underlying question here: do we have the right to sell used games?

Intellectual Property

Intellectual propertyThe problem with used games then and now is that when it comes to intellectual property (defined as “creations of the mind for which exclusive rights are protected”), we as the “owner” of a game actually have no legal right to resell it. Legally speaking, this is a gray area and it has been for other forms of media like books, music cds, dvds and Blu-rays, etc. The reason for this is because intellectual property in and of itself is not something that’s tangible. As defined, it’s a creation of the mind. What makes it tangible is that in order to get it out of the mind, it has to be produced onto something…a printed page, a plastic disc or something of that nature.

People who buy video games are under the impression that they own that game. And who can blame them?! They drop down sixty hard-earned dollars and they get a plastic disc, a box with some artwork and hours of entertainment. But the reality is plain and simple: you do not own and will never own a video game that you buy. The fee you paid to bring that game home was nothing more than a license to use the product. And it can be stripped away at any time if the creator of that game wishes to do so.

Where’s the value?

Physical mediaI read a really cool article titled, “Do we have the moral right to sell used games?” written by an author of a book about ecommerce and he explains in a bit more detail what it’s like to write a book, give it to a publisher, have them sell it for $40 per copy and then get to bring in $1.60 in royalties. After that, the book can be resold and bought many times over in the used market for any amount of money and not a penny of these new sales goes back to the original author.

He points out what I’ve always believed to be true in that the actual value of such products as video games is not in the physical media, it’s in the content of the game. This is what separates real property (house, boat, car, clothing) from intellectual property (music, games, movies, books). Because of that, a used market shouldn’t exist in the first place unless those profits are being shared with the content creator(s). Our mistake as a society was creating the belief that just because you can physically hold a video game or a book, we can legally do what we want with it.

To see how it’s supposed to work, just take a look at online stores such as iTunes or Kindle. There are no such things as “used” or “previously owned” and there never will be since digital copies only exist after you pay for them. At some point in the future, all physical media will probably cease to exist and for the first time ever, content creators can finally get those ideas out of their minds without having to turn them over to a physical media.

Microsoft’s Take

The debate about being able to play used games spurred a long-winded conversation about licensing and copyright laws between myself and Brian Sousa last night—a conversation I will not get into here! More importantly, the question still stands: can gamers play used games on the Xbox One?

According to Microsoft, the answer is simply, yes. However, they said they are leaving it up to the developers to decide when and for how much. The idea is that a game developer could regain control over their content (as they should) by allowing gamers to sell or trade their used games under their terms, not the gamer’s. This could mean that a developer might not allow games to be sold until a specific time frame has passed or that you can sell it, but it has to be a certain price or maybe you can sell the physical disc any way you’d like, but the new owner will have to purchase an activation code to get the game to play.

Nobody knows yet how this will all unfold…mainly because it will likely be different per developer, but one thing’s for sure…a lot of people are not liking this new approach to digital media. As a content creator myself, I have to side with the game developers and Microsoft on this one. I also have hope that once the developers see a spike in revenue from not having to pay for physical media and shipping costs, they can finally lower the initial cost of a game.

UPDATE: Microsoft has changed their position on used games


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  1. Trackback: New Xbox One Requires 24-hour Online Check

  2. Augure June 11, 2013

    Fuck you. We do

    • Brandon Hann June 11, 2013

      Very constructive criticism. Thanks for all your input!

  3. A.J. Graham June 11, 2013

    I agree with you. My concern is that the studios will continue with the same prices just because we’re used to paying it. Digital downloads are not sold any cheaper yet the cost of getting the game to the consumer is reduced. The content creator getting their share of revenue from initial sale and any resell afterwards is only fair and should be supported. I like the idea off needing an online pass more so then not being able to pay used games at all. While it may not have been “right” to have a used game market in the first place it’s not solely the consumers fault that it got this large. The publishers and console makers could have intervened long ago with an alternative instead they choose to just raise their price and allow people to get used to doing what’s “not right” so they share in the blame. With all that said the fact that the PS4 has no such limitations (as of yet, they’ll eventually flip a switch) is a buying point for me.

    • Brandon Hann June 11, 2013

      I’ve always been pissed about that too. When I’ve seen the choices to buy a book on Amazon, I often see the paperback version (new or used) actually cheaper than the download version. I’m hoping that in time, the market will balance itself. But like you said, since we’re all used to paying a certain amount, they could continue to keep raking in the profits.

      If anything changes, maybe the DLCs will become free since charging for them was one of the ways developers said they could re-coupe lost money on used game sales.

      And “flipping the switch” is right. Sony could follow suit here OR Microsoft could get such a backlash from doing it that they revert their choice…just like Apple did when they finally removed DRM from the iTunes store. We’ll have to wait and see.

      • A.J. Graham June 12, 2013

        You make a good point with DLC feeling that gap, to which there are also micro transactions as in Dead Space 3. While I think that these are good alternatives to shutting down the used game market I’m curious as to how well these methods have worked for less than blockbuster titles. Considering that studios have continued closing at an uncomfortable rate and publishers haven’t been willing to take much risk in developing new IPs, I’m inclined to think it’s not a viable revenue stream for most publishers when compared to the losses taken from used games.

        I can also see a reluctance to reduce digital prices as compared to physical media prices for the following two reasons.
        1) Convenience fee for not having to go to a retailer and not worrying about losing the game.
        2) Not wanting to disrupt relationships with retailers by underselling them.
        The price of games may and should drop but I think they will find enough excuses to not pass the savings from digital distribution to the consumer.

        I’m confident that the used game market as it is today will and should change. I just hope that the change is to strengthen the developers so that they can produce better games and are willing to take the risk to create something new. I can be content with game prices not coming down if the DLC cost and micro transaction devices go away. Honestly $60 a game is not a big deal and as long as I get more than 10 hours of entertainment then it’s cost me no more then the equivalency of catching a few movies.

        They being said every game should have a demo, no exceptions.

        • Brandon Hann June 12, 2013

          I agree. When my friend bought COD: Black Ops 2, he told me to pick up a copy so we could play, but it was already about 10pm the night he asked and my only option that night was to download it from the Xbox Live store. I did and immediately felt great about not having another item on my shelf to collect dust, plus I got the advantage of not having to swap discs when I wanted to play, etc. But then I quickly remembered that I had now lost the option of putting the game on eBay when I was done with it as I used to do with all of the previous COD games. So I traded a little freedom for convenience, but in the end I’m ok with that since you’re right about the $60 equaling about 5 movies in the theatre. Plus I can keep going back to the game forever if I choose.

          As far as DLC content and other in-game transactions, I think gaming is going to end up being similar to what we’re seeing in the mobile arena and on sites like Facebook, where many games are free or only cost a few dollars, but then to get more levels, power ups, special items, etc., you have to buy them all separate. In this way, you can actually customize the game for you and only purchase what you want. Like for COD…I never play the zombie games…if that had been a paid add-on, I would have saved money by never buying it. It will be interesting to see how things evolve!

          • A.J. Graham June 12, 2013

            *just realized I said “feeling” instead of “filling”, typing from my phone.

            So long as there’s no restrictions on how many times I can download my game and the backend bandwidth (looking at you Sony) doesn’t make it a painful wait, I would have no quarrel with only downloading games. I had a thought before that they could help fight used games by encouraging more digital consumption through the XBL and PS+ memberships. Anyone who pays for the subscription gets 10% off the digital price for retail games.

            The freemium model is definitely the future of MMORPGS. I don’t think it’s place in console gaming will be as huge but will certainly grow as a viable model.

            Ultimately I am excited to see where the gaming industry will go. We have very powerful tools for some incredible gaming we just have to better align the cashflow to put more in the developers hand to promote innovation. I really hope we don’t go too far down the anti consumer path to do so as Xbox One and SimCity are demonstrating.

          • Brandon Hann June 12, 2013

            Yeah I’m still on the fence about the Xbox One restrictions, but just in case, I pre-ordered both systems! One of them will hit eBay hopefully in time for the Christmas rush. It was interesting to read that apparently now Sony is requiring gamers to be Plus members in order to play online so that brings the online gameplay closer to that of Xbox Live now.

          • A.J. Graham June 12, 2013

            Almost forgot about preordering! I’ll have to get on that today. Likewise I’ll get both but will probably only keep the PS4.

            The PS+ requirement to play online isn’t a surprise. I’m sure they’ve wanted to do that for a while but they couldn’t without a comparable experience to XBL. That doesn’t bother me much as I don’t play online much anyway. If the the Microsoft way of requiring a membership to do anything online then I’ll have an issue. It still irks me greatly that XBL is required to watch Netflix!

            Well I don’t want drag these comments too far past the scope of topic. I think I have you on G+, I can reach out to you there.

  4. Wayne Reddick June 13, 2013

    Microsoft came about DRM with Xbox1 dont trust Sony w/online since another company is handling PS+ .. very good article kind of secured my decision. ..

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  6. mat September 7, 2013

    I think it is great big yes from me. The first sale doctrine agrees with me. Digital products created a new precedent because under the first sale doctrine you can sell your item but you can’t copy it. They are trying to split hairs by saying we are not buying the game but the license. What horse shit. What makes games more special than a CD which is also a digital, yet physical, product. Its mine and I can sell. Get your hands off what is mine.

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