In today’s guest lecture with Jas Purewal, one of the topics we explored was the legality of second hand sales of video games. It was an interesting topic. On my first impression, it seemed only logical that we should be able to resell video games we have purchased. We can resell cars, bikes, houses, chairs, board games, sports items, etc… so why not video games? Indeed, second hand sales have been a part of human civilization for as long as it has existed. So why should video games be treated differently ? But once I thought about it some more, I realized that video games are very different from other items that could potentially be resold after use. Essentially it comes down to this. For a board game, such as monopoly, the physical object is the game itself. The game and the physical object cannot be separated – they are one and the same. Whereas for a video game, if it has a physical object in connection to it (i.e. a CD or a cartridge), that physical object is merely a vessel for the game; the actual game exists in the ones and zeros of the software, and it would be inaccurate to think of that actually taking a permanent physical form. Increasingly, video games do not even have a physical vessel at all, but instead are obtained through download services like Steam. The lack of a true permanent physical existence for video games is a game changer and it only makes sense that the law treats second hand sales of video games differently than physical games. To see why, consider the fundamental difference between second hand sales of physical games, such as monopoly the board game, compared with video games. Physical games, or physical objects in general, degrade over time. When you buy a second hand physical game, part of the lower price is a function of the degradation the physical game has suffered. But video games don’t materially degrade over time, or at least not in the traditional sense. The game only degrades (if that is the proper word) relative to newer video games. That is, newer games look better and might play better, thus creating a contrast of quality between the new video game and the old one. But the old video games don’t materially degrade. It is true that the video game’s physical vessel, such as a cartridge, could degrade, but the ones and zeros should remain exactly the same. To be fair, one must account for the possibility of corruption of the ones and zeros, but I don’t think this is much of a concern in the modern era of video games. The fact that physical games degrade over time protects the developers of the game. Part of the reason why Hasbro is still able to sell Monopoly decades after it was first developed is because consumers have an interest in obtaining the game in perfect quality. If consumers didn’t care about the physical quality of the game, I suspect they would typically elect to purchase a cheaper second hand version of it. With second hand video games, however, consumers can get a cheaper product which is still in perfect condition. So why would a consumer ever buy a new, and more expensive, video game instead of getting the second hand, cheaper, but still in perfect quality, version of the video game? It seems second hand sales of video games could threaten the economic viability of the video game industry, so it makes sense that the law allows video game developers to provide themselves some protection through EULAs.
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Good points; they’re the ones that provide some of the most prominent arguments against digital resale. Consider, though, that CDs, while they are nominally physical, are essentially only useful as carriers of digital media. If taken care of, they can be used again and again (though, in all honesty, most install CDs are only used a handful of times). Physical degradation is a theoretical threat to the integrity of data encoded on CDs, but practically, it’s a non-issue. The CD might be scratched, damaged, or destroyed as to make data inaccessible, but no such “danger of destruction” argument is made with regard to losing one’s Steam password, getting one’s account hacked, or other data perils of online distribution platforms, despite the fact that these forms of data loss are arguably far more prevalent than those that could befall physical media.
Furthermore, physical wear and tear on a CD does not affect the utility of the vessel as a digital storage medium in the same way that yellowing or stains on a book impede its function (legibility). Nobody really cares whether your used copy of Starcraft is missing the manual or has a cracked jewel case, as long as the CD and CD key can be used. So in the end, I’d argue that digital vessels like CDs and DVDs are much closer in nature to purely digital media like Steam downloads than they are to books. And yet, the DVD market does okay with resales.
I actually wrote a term paper on digital resale, let me know if you’d like a copy — it’d probably make a good introduction to a fascinating and contentious area of intellectual property law.
Sorry about the wall of text. I’m not sure why my paragraphs disappeared when this got posted.
I don’t really see the distinction between a board game and a video game. To me, the “game” in the board game is not necessarily the physical board itself. The physical board is only, to use your words, a “vessel” to deliver the game. I can play monopoly on a piece paper or on a piece of drywall.
The fact that Monopoly is still able to sell, in my opinion, largely lies in the fact that board games have not changed much in the past decades. In this way, Monopoly is still a premier board game. In contrast, the quality and game-play in video games has improved drastically.
Interesting post. If video game companies are worried about the resale of their games, maybe a solution could be following the same process that Microsoft uses for their Wordprocessing software. Specifically, having a code that needs to be entered before the game can be played, and once entered, the game could only be played on that console and the code is no longer good for use on other consoles.