Where are all positive suckups for digital download being "the next best thing"



I'll hold on to my PHYSICAL GAME, thank you.



This is BAD, very very BAD.

making the re-selling of software illegal would be one of the stupidest things possible. firstly very few would abide by the law and even fewer would publicize if they do it . I think legally auto cad is correct in this issue as much as I hate to admit it but really they need to look at the long term of this issue. there are three possibilities a user can take if they don't buy it used. buy it new, possibly waiting for future price drops . Don't buy it if you don't like the new price but also be forced to keep content you may not use or want but is desired by someone else, and lastly pirate. in this day and age where computer literacy is improving and many valuable programs are just a web address away I feel it's idiotic to get rid of the ability to re-sale software. while the developers don't see any profit from those transactions they also suffer no true loss since the original content was paid for.



this will only encourage piracy of software across the board hopefully the decision is appealed.

With AutoCAD having a price of about $4000 I'm sure that the publisher is a bit pissed off that it is getting sold used..but at the same time the only reason the individual probably bought it was because it was at a discounted price...If they make the sale of used versions of this illegal, there will most likely just be a boom in pirating. But if this transfers to videogames--I think the industry will take a bigger hit than the gamers...I don't mind buying new games--but I know quite a few people that do--and if used is out of the question---then we can see an increase in pirating and a decrease in industry growth--not to mention that videogaming publishers have less to lose on selling a used game compared to AutoDesk/AutoCAD and a used program.

What would this mean for places that rent out video-games?

That's okay the people that "sell" used games can just say (in their hand written EULA in the case) they want to rent or license their game instead of sell it. Then the people that get it (gamestop, some guy over ebay) can rent or license it again, and so on and so forth. A different word for the same action that is all AutoDesk did and that is all used game sellers would have to do.

'This Software is licensed to you, not sold.' should be illegal in itself.

Not weighing it either way, but AutoCAD is a tool that is meant for continual use. It has inherent reusability much like you never get tired of a hammer... you only need it again. A game, especially one that is story-driven, is NOT necessarily meant or built for reusability. Once you have played through it, you are kinda done with it.



The difference being, AutoCAD is only benefiting one user at a time as a tool. Just like selling your hammer to someone else. The story and play experience in a game can be passed on and on and on with each person getting exactly what the developer intended -- the (generally) one-time experience of play-through. However, the developer only gets paid once.



Beware of apples and oranges.

What another great way to encourage piracy. How many people will turn to pirated copies when they find they can't resale the ones they buy?

Not only is this a bad omen for places like Gamestop, but also places like Gamefly.



This also in my mind plays into a more abstract issue: If companies are really going to go this route, and start claiming that they are only selling licenses and not actual ownership, then they are pushing themselves further off the bandstand of "you are stealing property when you download music, software", etc.



Legally it makes sense, but as a consumer, if you're telling me I've payed some hard earned money for something and I don't even actually own it, I'm much less likely to want to pay for something that I can't even own.



Who would pay full price for a car if they could never own it, and thusly never sell it? The only way to fairly move forward in the digital age, is for people to have ownership of their digital products.

Well thats something... can someone tell me where to buy new NES games?

Can't wait till Ford starts licensing their cars.

IANAL, but there are some things you don't have to be a lawyer to appreciate.



Fiorentino I: "I'll hold on to my PHYSICAL GAME, thank you."



In terms of ownership rights, the delivery medium is irrelevant. The person who owns some piece of software owns it exactly as much if it's delivered for use digitally as if it's delivered on a disc.



Ujn Hunter: "'This Software is licensed to you, not sold.' should be illegal in itself."



Why? The point of "licensing" something is to make a distinction between using something and owning it. That legal distinction has great economic value because it allows a lot more people to gain the use of things than could otherwise have happened.



Licensing is basically like renting. When you rent an apartment, you don't own it. Someone else retains the ownership of that place; what you're paying for is the opportunity to use that place. Without the legal concept of "renting," the only people who'd be allowed to live some place would be those who own that place or who are explicitly permitted to live there. Renting allows vastly more people to be able to enjoy the use of a home.



Software licensing has the same effect. It allows the person who creates something to retain ownership of it, while providing a legal mechanism for allowing many other people to enjoy the use of that thing. Without the concept of licensing (as distinct from owning), everyone who creates useful things would have to make individual usage contracts, which would drastically reduce the number of people who could enjoy books, music, movies... and games.



Jonathan Jennings: "there are three possibilities a user can take if they don't buy it used. buy it new, possibly waiting for future price drops . Don't buy it if you don't like the new price but also be forced to keep content you may not use or want but is desired by someone else, and lastly pirate."



Another possibility is that enforcing licensing restrictions will encourage third parties to create their own versions of the desired software with less restrictive licensing terms. To put it another way, a strong defense of property rights helps to encourage economic competition, which generally improves both the quality and availability of desirable goods. It's actually to the long-term benefit of gamers to support contract law generally and licensing specifically as (I'm pleasantly surprised to see) the Ninth Circuit has done here.



That's not to say that software developers aren't free to loosen up their licensing terms on their own, or that Congress shouldn't be careful to define licensing law so as to protect the "fair use" of distributable works through libraries or for research. A strong defense of contract/licensing law doesn't preclude either of those things (as the Ninth Circuit's ruling pointed out).



But the bottom line is that "because I want it" is not and never will be a sufficient justification for taking someone's property without just compensation. It is absolutely irrelevant that something gets easier to distribute once it's converted into ones and zeros -- if the owner of that property sets rules restricting the transfer of that property (as is the case with most licensing agreements), then those rules ought to be respected and enforced. If you don't like that this makes some desirable good harder to obtain, the ethical solution is not to steal it (AKA "piracy") -- it is to go make your own version of that good and distribute it under your own (presumably looser) terms of transfer.

I completely agree with Dave Mark! There is a huge difference between a software that you use for work and games.



Companies (which in majority buy tools like Auto Cad and not games) can be easily a subject for a software control unlike private single users. This means that piracy is greatly reduced by this fact because using a pirated software in a company environement with many employees would be quite risky.



In my opinion expensive software tools like Auto Cad should be sold not licensed since the company that uses it is unlikely to sell it to somebody else (the hammer example by Dave). Such situation would also greatly benefit the actual developer of the software because if the tool is merely licensed it can not be used as collateral in a bank loan. If it can not be used as collateral it means that in practice you need to buy it for cash because no bank will lend you the money for it like it would be with a company car which can be used as collateral.



Basically purchasing full package of software for many emplyees can be a really serious cost. If it would be sold it could be used for collateral by the bank meaning that in the long run more companies could afford it - resulting in more sales for the developer. Preventing resale of the software is in my opinion very short sighted and results in increased piracy.



As for the games the physical/digital copy aspect has nothing to do with it. If the agreement states that the games is licensed and not sold you can not legally sell it even if you have the physical disc.

This will not be an issue. The wording is what will allow developers and publisher to get a percentage off all games sold new or used. When you sell a game to GameStop what you will actually be selling is the licensing agreement. Therefore what they will be selling used is the licensing agreement.



Nobody in the game industry wants to hurt game sales. The developers and publishers don't want to put GameStop out of business they just want their cut.



Worst case scenario will be that used game prices will increase to compensate for the additional fees going to the developers and publishers.

It's important to add to this discussion is that it is not retroactive.



Game EULAs do not have cannot trade/resell clauses (I'm pretty confident none do but there could be exceptions).



This court case allows them to add these clauses, but they cannot implant it into older games effectively.



It also means they do not need to, although currently it could be within their interest to implement these, however as EULAs are currently different per game it will affect different games differently dependant on what the publisher wants.



In the end it just reiterates that EULAs are legally binding and that the developer/publisher has control of the software he creates.

For what it's worth, Newtek, maker of LightWave 3D has absolutely no problem with you selling on your used copies of their software. They even have a form available to ensure legal transfer of the license.



Given that a dongle is needed to run the software, I suppose they feel pretty confident that no funny business will occur.

WRT the ruling, interesting that the stock market doesn't seem to have cared, as least as far as Gamestop is concerned. Hmm.



WRT the used game debate, I think it's overblown. Many devs moving to new biz models and game designs anyway that will render the used titles less valuable over time. The gamers will respond by demanding more of their games and/or lower prices when they take into account that they can't resell. The market has a funny way of working itself out.



@Bart:

>The point of "licensing" something is to make a distinction between using something and owning it. That legal distinction has great economic value because it allows a lot more people to gain the use of things than could otherwise have happened.



Disagree. The economy of scale happens whether the game is sold or 'licensed'. The "license not sold" thing is is a very deliberate tactic to end-run the doctrine of first sale. No more complicated than that.



To be clear, I have no problem with it, but the industry should be honest with consumers. Don't use the word "buy" at retail, for starters. Use 'rent', 'license' or 'purchase access to the game' or some such thing. Buy implies ownership, and property ownership carries with it an implied value and utility.

I think that if these software companies want residual profits off the sale of used software that they have had no hand in selling or in supporting of selling, then they need to create a business model that has an inherent benefit to the end user surrounding these used markets (Autodesk, I have a used version of Maya that I was thinking of selling to a friend for educational reasons, but if I cannot, are you going to buy it back from me??!!).



I live by used software and equipment being a private developer and artist within the video game industry. Most companies I work for understand compulsion cycles.



If used software will go up in price (lower ROI for seller), then what compels an owner to even offer up a title for used sale? Inadvertently increasing the price of used software will create an inverse effect on the amount of used units sold.



I prefer a free market for used products, it's the only business model that has a benefit for everyone involved in the transaction (which is not you Autodesk, we already paid you).

"However, AutoCAD's developer, Autodesk, claimed the End User License Agreement (EULA) that users agreed to before using the software stated that the program was merely licensed, not sold, and that the user's license was non-transferable."



The question of licensing software seems to concern business retail, and not retail video games. At least, that's what I understand. Skilled lawyers, however, can use these definitions to rewrite the rules on used sales, rentals, etc. How far is the game industry willing to push for that outcome? How they respond to this ruling (and eventual appeal) will be very telling. We will see just how healthy or weak the video game business truly is.



I can't imagine this industry would block or ban used game sales. Some executives crow and whine, of course, but this would amount to a defacto prohibition of ditigal media. Who is willing to spend their dwindling fortunes chasing after retailers, online import shops, eBay, and Craig's List? Such a move would make the music industry's war against music downloads seem tame by comparison...and it would prove equally suicidal.



If the game industry wants another Crash of '83, then bring it on.

Is this not already present in the EU under droit de suite? or since games are not art, they don't apply? Seems like a similar concept. It does not stop the right of transfer, it simply taxes it. A fee is applied during the transaction from person A to person B. Similar to how you pay taxes on a car when you buy it from someone.



I don't know how this would affect the industry, or the consumers, but from what I can tell it would help the developers, and possibly hurt the consumers.

I can only hope that this policy is placed on EVERYTHING, including (but not limited to) records, CDs, books, VHS, DVD, Blu-Ray, stone tablets, parchment, and radio. Because I think that's what it would take to get this law changed.



http://freakonomics.blogs.nytimes.com/2010/04/21/have-you-accidentally-sold-your
-soul-lately/



EULAs are a joke. They've always been quasi-evil. Now they are full on evil.

@ David Brady



A EULA that tries to take from you what is rightfully yours (soul, first-born child, etc) won't stand up in court. However, one that defines that use of the copyright owner's material will.

From the decision: "We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions."



The 'out' here for game sales is (2); Autodesk takes exceptional efforts (they used to use USB/parallel dongles) to keep users from transferring software, above and beyond what virtually anything else does, so they have a much more compelling case to make with respect to having made it clear that they were only granting a license all along. While I'm not thrilled with the results of the case (and of course with the usual IANAL caveat), I don't think this will substantially change the First Sale provisos for most software.

I completely agree with the judge's decision in the case. I don't, however, agree with Autodesk. The resale of an obsolete piece of software does nothing but help them in the long run, establishing a user base that will be willing to purchase the suite from them at a later time. Most casual people can't afford to throw $3,500+ at a piece of software that will be out of date in less than a year and for the most part, not compatible with the newer versions. (I'm specifically referring to 3DSMax 8 to 9. Files created using 8 could be opened in 9, but couldn't go back to 8. A huge issue, especially for a student who'd somehow scrapped together enough cash to buy 8, and couldn't afford to update 3 months later, when the school updated all their systems.)



By dismissing the software's resale, they're basically cutting off groups of people from subsequently learning the software, at least without pirating the software.



I don't see how this could really apply to console video games, as I've never personally had to sign a EULA for any of them (do they even exist?), though PC games will be in serious trouble with this ruling. Unfortunately, I don't see any real solution, as getting the government to regulate the software companies would be a tremendously bad idea (much like the idea of the government getting their hands into, well, everything!).

A parallel to this is the Real Money Transfer (RMT) issue in massively multiplayer online games.



The EULA and ToS agreements in most of these games make it clear that you (the player) do not "own" any of the items in the gameworld even though you (the character) can act as though you do. So you're not allowed to contract with another player to "sell" in-game items for real-world money since you -- the player out in the real world where the real-money transaction takes place --- don't actually own the goods being traded.



(This gets a little weird in that the goods in question are virtual. A sword only exists in a gameworld... but the ones and zeros that define that sword are supposed to be real things that exist on a database and that can be and are owned by the game's operator. Just remember, if ones and zeros aren't legally protected as Real Things, then no form of software is ownable property -- at which point kiss the computer game industry goodbye, along with an enormous fraction of the world's current wealth.)



As with software applications, the point of licensing access to items in MMORPGs is to establish a legal framework under which you can have the use of desirable goods without establishing a claim of ownership over those goods. That's such a Good Thing that it's why the Ninth Circuit pretty much had to rule the way it did -- the alternative would be disastrous.

Would enforcement of this law bankrupt Gamestop?

I think game publishers should enforce this law to shut down major game resellers (game stop), then drop the price of new games by $10.

I really can't see video game publishers trying to ban used game sales. Maybe they could muscle their way around Gamestop, but not Best Buy or Target. Remember that major retail chains are adopting the "used game" model.



This game can be played both ways. If any publisher tries to force Best Buy from selling used games, Best Buy can simply retaliate by not stocking their products at all. And just who is going to lose that little game of Chicken, hmm?



The game industry would be suicidal to sue retailers for selling used games. It is not going to happen.

The one thing about this ruling that I think is a real problem is that it very well could backfire against the developers and publishers.



Gamestop and the other large volume nation wide retailers of video games that have used game sales that are a significant chunk of their bottomline, will certainly have a very difficult time remaining profitable or even just plain an ongoing concern.



I think that what could happen is that the retail outlets will close out the sale of video games around the country except in the large metro area markets. The impact on the gaming compainies is obvious--they won't have as many places to sell their games. Further, I would think that the retailers and their distributors will have raise their prices and even lower the amount that goes to the game companies.



These retail outlets are not powerless in this situation. They will have to play hard ball with the game companies.



Ultimately, I think this ruling will provet to be a pyrrich victory.

Here's an interesting question - other than software, can anyone think of any kind of product which is "licensed", not sold, without an explicit agreement stating as much *prior* to the transaction?



The places where one obtains games are all retailers - Amazon, Gamestop, Best Buy, etc. None of these stores typically act as licensors. So if I go into a retailer (and retailer has a specific meaning which does *not* include rental) at which all of the things I normally spend money on are things that become my property, and that retailer does not in any way make clear to me that they are selling a license, aren't I as a consumer on pretty solid ground to believe that I have purchased a product and not agreed to a license?

I have been reading software licenses before using since DOS was released...and I have never seen a piece of software that actually allows ownership. Ever since Bill Gates first floated that paradigm. Can anyone claim any software that authorizes you to own it?



Many, licenses put restrictions on transfer of license, resale, LENDING -- and certainly decompiling and reverse engineering. This would never fly in an actual sale, of course. Imagine buying a kitchen table with the stipulation that you can't take it apart...you can't create derivative works -- like attaching anything to it, or painting it!



I remember when I first saw used games for sale and though "That violates those licenses...that's not going to last. When software companies defend their agreement in court." I'm surprised it took them so long!

oh cool. so, piracy it is then? cool. because, you know, it was a bit of a grey area before. but I mean OBVIOUSLY some company trying to charge us $4000 for a disk, and now saying we can't sell it on when we're done with it.... I mean, its got to be a joke right? and with the already rampant piracy on their software due to the MASSIVE price, clearly they just wanted to make it very clear to their few actual paying customers that they were suckers for ever paying money for software.



and in the middle of a terrible economic dip... where people are desperate to cut expenses as much as possible... It's just laughable...



I never thought I'd say this... but the companies trying to get a piece of the pie out of used sales clearly have the better idea...

Here's the true problem behind this. When the company that originally owned these copies upgraded to a new version, their license to run AutoCAD was transferred to their new version. They essentially purchased an upgrade copy of AutoCAD and thus they no longer even HAD copies of the old program to sell. AutoDesk should be going after that company and charging them for a full copy of every old program they sold so that their licenses are current.



What they did essentially is like buying Windows Vista Retail copy, buying Windows 7 Upgrade, then selling the Windows Vista Retail copy after the upgrade was installed. Once they do that, they no longer have a license to actually run Windows 7 Upgrade!



But Autodesk isn't going to do it that way because the other company is an active customer that will buy more upgrades and they don't want to piss them off, even though they are the ones in the wrong in this case. And in the process, completely wreck the copyright laws in the country.

I have to say this is bad for the most important person in the video game industry, THE CONSUMER. They buy the games. That is the end all be all of the story right there. In the end if the industry bans the sale of used games it will back fire on us all...

Aren't people getting a little ahead of themselves? A 9th Circuit Court ruling only applies to its jurisdiction, and, if I'm remembering correctly, other Circuits opinions are often quite contrary to the 9th. I don't see how this ruling is even enforceable. People in California could buy used software, but not sell it?

This Cracked article seems relevant: http://www.cracked.com/article_18513_5-insane-file-sharing-panics-from-before-in
ternet.html



And lets be honest, licensing software is simply a way to bypass the first sale doctrine... which exists in the first place because of companies trying exactly crap like this: http://en.wikipedia.org/wiki/Bobbs-Merrill_Co._v._Straus



When was the last time anyone rented anything for a flat fee at the start and then was able to use it forever?! And even so, i don't understand why i shouldn't be allow to lets say rent the apartment i'm renting to someone else as long as legally i'm still allowed to use the apartment space... or is that why they had to put in the EULA that you're not allowed to give the license away...

Why would dev's/pub's pursue a similar legislation when digital distribution is catching on? Once you download a game through a purchase it'd be stored in your console. Treating a console like a computer by giving it it's own IP address and each instance of downloaded software it's own serial number could limit piracy by denying access to the game by consoles whose IP addresses differ from the one registered to the software. The same would occur for a physical copy except that when it's sold to a retailer, such as Gamestop, and then resold to 'budget gamer' it'd have to be re-registered on his/her console and this is where dev'/pub's can get a piece of the pie by charging a fee for this "service".



This may open up video game software to being hacked with keygen-type codes, similar to what happens to 3DS Max and Maya, but given the amount of video game releases each month these hackers would have a time trying to keep up with new releases.



Another possibility is the retailer assuming ownership of the physical copies of software (since they DID purchase it from the dev's) and then leasing it out to consumers. This could occur by following the Redbox model where you are charged "x" per day for the first week, then "x/2" per day for the second week until the item is paid in full. Incentives could be offered for purchasing/renting multiple titles at once. If you have all the newest releases available to you at little cost and before they are available in pirated form by bootleggers, then this would cut down on piracy. ALSO, why pay $60 in the first place for a game you beat in two days? Anticipating this, retailers may charge a higher fee for the first day (say $10). Suppose a game gets returned two days later because 'hardcore' gamer is ... your know, hardcore, if this happens three times in a week that retailer just made $30+ off the same copy of said game, still OWNS it and can still sell it for close to full price if a consumer exercises the "paid in full" option. I'm sure retailers are toying with this "Redbox" concept, especially after seeing how it (along with Netflix) crippled Blockbuster and other rental chaings. I smell monopoly ...



Lastly, if retailers did follow any of the proposed scenarios and seeing as how Target, Walmart, etc stand to gain substantially from used game sales, publishers just need to band together and raise the wholesale prices of their software. This may trickle down to the consumer, but as digital distribution catches on the pub's will have more leverage and may be able to exercise their own "Redbox" system. Online-based, of course. I'd also encourage Gamestop to counteract Target and Wal-mart by testing out Gamestop kiosks. Why drive to a crowded Wal-Mart/Target anyway when one of these kiosks is right up the street? New titles in these machines may be risky, but surely the vending of popular pre-owned titles is definitely plausible. Go Gamestop!

Everyone's focusing on the business aspects of this, but I'm terribly concerned about the ALA's stance. Most people don't realise the funding crisis that much of the US library system lives with, and even fewer realise that in many areas library attendance is up. The potential fallout forcing libraries to pay more money is a disaster waiting to happen.

Look at the games industry as a whole.

An exptrapolation of the trend of pc/console game distribution leads me to believe that eventually we will all end up using a "Steam" like service to get ALL games...and on top of that we "Subscribe" to games on a time basis (World of warcraft would be $ per month, Tony Hawk would be $ / lifetime) all associated to a universal account.. requiring an internet connection to just be able to play our single player games (Starcraft 2)...or even use your PC/console!



All games are Downloadable-Only...and abolish discs!



Sure..piracy would be still be there (cant really stop it) but u will see fewer sales until the prces become more reasonable then they are now



Perhaps abolishing discs will reduce game costs? Possible but probably not by enough.

Now this is a thread!



INPUT!

Oh, and concerning the actual case here, the guy they sued seems to not have actually agreed to their EULA, as we bought it from someone else so he can sell it on ebay and there's no mention of him using it. So now EULA's would be legal before you actually agree to them?!



And while we're on the leasing/renting thing, where else do you pay money before you even get to see the contract, let alone agree to it...

This seems concerning, but I'm not all that surprised if video game companies go after the used game industry. However, I'm pretty sure there will be several groups to stand up against it. That being said, I don't think we having anything to worry about at the moment.

I really believe that EULA's need to be overhauled. If we read all the EULA's we've agreed to in our lives...we'd only be playing our 2nd or 3rd game.



Although many details would have to be worked out, I think the generally impacting points of EULA's should be summed up in ten bullet points in 12 point font on the front page in plain English (or whatever language they are in). Now you know what 95% of the rubbish in the EULA really means, and clicking "I Agree" will actually mean you pretty much agree with the EULA.



Yes, there would have to be a way of determining what actually goes into the bullet points, and yes companies would try to skirt the issues, but for the most part, I think it would really be of great benefit to the consumer.



What are your thoughts?