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Used game sales could be outlawed in the US

A recent ruling by the U.S. Court of Appeals might mark the beginning of the end for the used game market. The case, ‘Vernor v Autodesk,’ involved the sale of copies of AutoCAD, a piece of software for designing and drafting in 3D, on eBay. Defendant Timothy Vernor had acquired copies of the AutoCAD software at an office sale and later attempted to sell it on eBay with the serial number and assurances that it was not installed on any other computers.

AutoCAD developer, Autodesk, attempted to prevent Vernor from selling the copies, claiming that Vernor never owned the software in the first place. Autodesk argued that according to the End User License Agreement, the AutoCAD software was licensed, not sold, and that a user’s license could not be transferred.


Above: The End User License Agreement (EULA) for a piece of design software could change the used game market in the US

Vernor argued that he had never agreed to Autodesk’s EULA when he purchased his copies of AutoCAD. Therefore, it was within his right to sell the software. The court ruled in favor of Vernon in 2008. But recently, the U.S. Court of Appeals reversed the earlier decision, ruling in favor of Autodesk.

The decision highlights the difference between software that is sold and software that is licensed. Software that is licensed, isn’t ‘owned’ in the traditional sense – and therefore can’t be sold to another party. If US game developers and publishers follow Autodesk’s lead, the sale of used games could be, technically, illegal. Gamasutra points to a standard line found in EULAs for most Electronic Arts titles, which says “This Software is licensed to you, not sold.”

Sep 14, 2010

Source: Gamasutra



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37 comments

  • bloodyshadow - September 16, 2010 8:40 p.m.

    How exactly does a couRT "Change their mind?" Isn't that the POINT of the term "Double Jepordy?!" ...stupid law... stupid rules. Not saying I don't totally oppose used game selling... but that's f*cked up.
  • alphafour - September 16, 2010 2:25 a.m.

    At least this would probably never work in the UK, I'm not entirely sure but I think there's some law here either Sale of Goods Act or something else which already covers that, I doubt the government here would be willing to make any significant amendments so laws dont conflict, i suppose there would be considerable backlash
  • NuQLER - September 15, 2010 7:17 p.m.

    it strikes me that one issue game devs/publishers might have w/ seeing legislation/litigation like this through might be w/ simple sales and distribution. as the majority of us seem to still enjoy physical media, (i know, and you can stop yelling "Steam" now) i think they still really need brick and mortar shops to to sell effectively in the 1st place. this is only compounded imo by even larger chains/interests like Target and Best Buy here in the US clamoring to get a piece of the used game pie... just a thought.
  • TonyBlue05 - September 15, 2010 6:59 p.m.

    As a few people have pointed out, there is a difference in how licenses work with between physical media and digital media. Autodesk is fully within their rights to sue over software because software is installed on a computer with one and only one license for that install. This Vernon guy got these at an office sale (so he claims), so he never purchased the license to install the software. Come to think of it, the company he works for should be put under the microscope for this for selling it in the first place. With physical media, however, the license carries with the item, because the physical item is what is being used, not a piece of it that can then be discarded. If I buy a copy of Uncharted, then sell that to another person, can I still play the game? No, of course not. The license carries with the item. Now, if I buy a program, install it, then give the disc away, I can still use the program, and the new disc owner can find some way to get his copy working. It's two very different scenarios.
  • TheCakeIsaPie - September 15, 2010 6:35 p.m.

    The little voice in the back of my head says that if people can't buy used games, they'll pirate instead.
  • Zeos - September 15, 2010 6:01 p.m.

    Well that would suck, I buy lots of used games.
  • RushofBlood17 - September 15, 2010 1:50 p.m.

    I think we should outlaw libraries as well.
  • EnragedTortoise1 - September 15, 2010 11:52 a.m.

    Oh, c'mon.. really?
  • JakeyBaby - September 15, 2010 11:36 a.m.

    @papergoon: I've always stood by the idea of making the games industry like the movie, and music industry. Where I can go into my local store and buy ANYTHING from ANY era. If the games industry just released a steady stream of it's old games, like the movie and music industry does, (which it's taking steps towards with the Ico/SotC bundle, so I'm hopefull) then we wouldn't have to buy ancient games. It's an idea I'm all for.
  • papergoon - September 15, 2010 11:11 a.m.

    Ehhh what? So even if the game's ancient and stores don't carry them anymore, they can't be resold? What's next, banning game rentals?
  • TheBoz - September 15, 2010 10:18 a.m.

    @KaoiDavidson - I know you can't blurt out the exact maths, but it doesn't take a rocket scientist to work them out. I have traded games in and seen how muth pre owned copes are selling for, I know how much cars sell for after trading them in. We all know that if there is no profit, noone would trade anything at all apart from owners trying to offload in car boot sales. Trading in items, be it a game, a car, a console even a phone just makes life convenient for a lot of people even if we know at the back of our mind we might be able to get more if we sold it direct ourselves.
  • KaoiDavidson - September 15, 2010 8:13 a.m.

    @ Harrison. Actually, I worked at GameStop for over a year, and although I can't blurt out the exact math, we make more profit from the cycling of buying and selling used merchandise than we would if we only sold new merch. So really, it'd hurt GameStop like Hell if the company couldn't sell and trade used games.
  • TheBoz - September 15, 2010 8:04 a.m.

    Also when people trade games in, 9 times out of 10 they purchase a new game, so selling your old games feeds the new games industry. Gaming is already a very expensive business. When any game is only limited to my personal use, to the computer I install it on, it will be at that moment I will only buy pirate, something I have never ever done. Fact is, I wouldn't have bought Alan Wake if I didn't trade FIFA 10 in, FACT.
  • TheBoz - September 15, 2010 7:57 a.m.

    OK, they might be able to licence the software, but they can't licence the storage media. If I buy a game and happen to then sell the packaging at a later date, they can not outlaw that. I may not be able to legally own what is on the CD or DVD but I do legally own the CD or DVD. The thing is, if they are argue they still own the materials, which no way can they do so, otherwise VW still own my car and I don't, Dell still own my computer and I don't and Dyson still own my vac and I don't, but IF they want to argue they still own the materials it is down to them if they break or get stolen just as my modem broke and had to be replaced free of charge. They can't have it both ways.
  • JakeyBaby - September 15, 2010 7:53 a.m.

    Nope. Won't happen. Licened software is Licenced to the buyer only, that's why you tick the box without reading 10,000 words of crap you don't understand. Whereas Games are physical medium, sold and resold how you see fit. In an economic climate where people have to sell stuff they own to get by, this wont go down well at all. Introduce a black market, and make piracy bigger than ever, imploding the industry. I'm thinking not even Activision would be so dumb/greedy... *touches wood*
  • InebriatedRage - September 15, 2010 7:31 a.m.

    Great, lets punish those who actually purchase games (USED OR NEW)...whatever, if this happens I will pirate more and more games like many others.
  • DreamWeaverPL - September 15, 2010 3:56 a.m.

    Consumers: 0 : 1 Pirates
  • BoondockSaint54 - September 15, 2010 3:10 a.m.

    That would be a baaaaad day for gamers. Despite what the most of the TDar crew and some of the other people think, used game sales help a lot of consumers out. If the industry followed this court case's footsteps I know a lot of people that would probably stop buying games altogether. Every industry deals with used sales for their products in their own way, either through incentives for buying new, warranties, etc, and the gaming industry needs to learn to do the same thing. I applaud EA and other companies for trying to do that and not trying to shut the used game industry down totally.
  • Chickenfoot - September 15, 2010 2:51 a.m.

    Meh. Anyway. Even if this happens, they will have pissed off the internet. 'Nuff said.
  • SAUGAPRIME - September 15, 2010 2:46 a.m.

    They just want more of are hard earned money. We get taxed on are pay cheques, then we have to pay the bank to cash the cheque, then were taxed on buying shit, and then we have to pay tax at the end of the year yeaaaa! We need used items to stay. How would people feel if they took away used cars, your only allowed to buy new ones.

Showing 1-20 of 37 comments

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