Gamasutra is part of the Informa Tech Division of Informa PLC

This site is operated by a business or businesses owned by Informa PLC and all copyright resides with them. Informa PLC's registered office is 5 Howick Place, London SW1P 1WG. Registered in England and Wales. Number 8860726.

Gamasutra: The Art & Business of Making Gamesspacer
View All     RSS
May 18, 2022
arrowPress Releases
If you enjoy reading this site, you might also want to check out these UBM Tech sites:

Court Of Appeals Ruling Threatens Sale Of Used Games?

Court Of Appeals Ruling Threatens Sale Of Used Games?

September 13, 2010 | By Simon Parkin

September 13, 2010 | By Simon Parkin
More: Console/PC

The U.S. Court of Appeals for the Ninth Circuit has upheld the right of software companies to deny consumers the right to resell their products.

The ruling came as the result of a long-standing case involving used computer software sales on eBay, but its wide-ranging implications could threaten the resale of all digital content, including video games.

The case involved the sale of copies of AutoCAD, software that defendant Timothy Vernor had picked up in an architect's office sale. Vernor then put the software up for sale on auction site eBay, complete with serial numbers and a reassurance that no versions were currently installed on any other machine.

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.

Furthermore, the agreement specified that, if the user upgraded to a new version of the software, the old version had to be destroyed.

Autodesk claimed that the copies Vernor had obtained should have been destroyed. Vernor counter-argued that, as he had not agreed to any license, he was free to sell the copies on and, on the verge of being banned from eBay, sued Autodesk to protect his business.

The court affirmed Vernor's right to sell the used software in 2008, but Autodesk appealed and last week the Court of Appeals for the Ninth Circuit reversed the earlier decision.

The ruling aims to distinguish between when a piece of software is sold and when it is merely licensed, with the user potentially unable to resell if it's the latter. The judge presiding over the case said: "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 ruling could have severe implications for other forms of digital media that are subject to license agreements, potentially preventing users from selling on their used video games. Indeed, Electronic Arts' standard EULA, while not mentioning resale policy, explicitly states: 'This Software is licensed to you, not sold.'

Libraries that loan digital media could also be subject to restrictions following the decision. The American Library Association, fearing that publishers could now forbid rental or lending unless libraries agree to more expensive licenses, filed an amicus brief in the case, which the judges reportedly showed some sympathy for, before concluding that they were forced to follow precedent.

The Court did, however, state that: "congress is free... to modify the first sale doctrine and the essential step defense if it deems these or other policy considerations to require a different approach."

Related Jobs

Disbelief — Chicago, Illinois, United States

Sucker Punch Productions
Sucker Punch Productions — Bellevue, Washington, United States

Senior Level / Mission Designer
Sucker Punch Productions
Sucker Punch Productions — Bellevue, Washington, United States

Campaign Director
Build a Rocket Boy Games
Build a Rocket Boy Games — Edinburgh, Scotland, United Kingdom

Senior Audio Programmer

Loading Comments

loader image