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.