Sales Of Pre-Owned Software Under Threat?

Tuffcub 38 Comments

A  US Court of Appeal has overturned a previous ruling and upheld a software developer’s rights to prevent any resales of their product. The case was between AutoCAD developers, Autodesk, and the defendant Timothy Vernor. Mr. Vernor had picked up a copy of AutoCAD in an architect’s office sale and then put the software up for sale on E-Bay.

AutoCAD claimed that the End User License (EULA) states that the program is merely licensed, not sold, and is non-transferable. The Court ruled in an attempt to distinguish between when a piece of software is sold and when it is licensed.  The judge 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.”

And now the bad news. Go and check all those pages of fine print in the back of your game manuals. The Electronic Arts license states ‘This Software is licensed to you, not sold.’ which means this Court ruling could be upheld as a test case if EA wanted to stop resales of their games. Any other publisher who includes the correct wording in their EULA will also have a case to stop any resales.

The ruling is in America and could not affect any sales in the U.K. and Europe but if pre-owned sales were successfully banned in the U.S.A. then the rest of the world would not be too far behind.

Why not go and have a read through the EULA of your latest game purchase and check out exactly what you are agreeing to when you slip the disc in the drive.

Source: Gamasutra

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38 Comments

  1. Would be a shame if games developers took this route but looks like they are going the pay for multiplayer option which makes more sense.

    Besides I use Lovefilm to rent most games and if they are not worth purchasing no problem, if they are worth purchasing I probably just buy them without renting anyway, and for these titles I tend not to resell anyway cause they are that good.

    • I wonder if the geames are special rental versions, as usually the disclaimers mention not for rent etc dont they?

  2. ahhh! there goes my impulse buys lol

  3. whether it says that or not, it will never stop people selling games on as pre-owned. And game distributors would be mad to try and stop it. It funds the purchasing of new games.

  4. Well, bye-bye preowned market.
    You were good while you lasted.
    RIP

  5. I wonder how long it will be before renting under threat… as far as I know its already been made illegal in some EU countries, Belgium springs to mind for some reason although I may be wrong.

    The double whammy of no place to resell games & no place to rent them will mean I’ll just spend more money on footie & drinking – actually after the barren gaming summer that sounds a damn good idea

    • Renting games is illegal in Norway. Not sure why, it didn’t used to be, and renting movies is allowed, but it’s been that way for a good 5 or 6 years at least. Pre-owned sections in game shops are rampant but pricey.

      What do I do as a result? Import games from the UK.

      • Surely it can’t be cheaper to buy games from the UK?! We’re always bitching about the high comparative prices, especially with the US.

      • Actually, here in Spain many people also imports games from UK, the release price here is about 60-70€ (thats about 50-58 pounds!) so yeah, its woth it!

      • Paddy, a new game costs £49.99 – £59.99. Many pre-owned games sell for £25-40. When you can buy it from the UK for £10-18 new with no import tax, it’s worth it.

    • I was the under impression there was an agreement allowing the rental of some games and blocking others. MAG has never been available to rent from lovefilm, I’ve always assumed that this was because Sony blocked it. MAG appears on lovefilm but it just says “not available” but all other Sony games are available. I also thought money did get passed to developers from companies that provide rental services.

      I’m not sure about the rest of Europe but that’s how I understood it in the UK.

      • MAG is available to rent, at least from Blockbuster anyway. For a company to rents out games and movies they have to buy a over priced version that allows them to be rented out. Stems from the old video rental service when they used to have to buy better more robust versions from the distributors, that’s why there’s a big market for ex-rental videos.

  6. That will be appealed and quickly overturned. The reason: Autodesk can’t prove that anyone (or who) agreed to the EULA in the first place.

    • I hope so. God forbid the gaming industry doesn’t learn from the music industry where the RIAA is wandering around with a big stick and alienating the entire customer-base with it’s heavy-handedness.

      • Let them rest assured that the day they do that is the day I start pirating all my games instead of buying them.

      • i doubt you’ll be alone katy.

  7. i can see this actually hindering the games market rather than helping it. specially as alot of gamers like me wont buy a game unless its a) good value or b) pre-owned in my case as i cant afford many games.

    i cant see this being a good thing at all

  8. If second hand games get banned in America it would be hard for ebay to police game sales which could lead to a worldwide block of game sales on ebay.

    I don’t think publishers would have an issue getting second hand sales banned, it would give them greater control and understanding of how to price games and the revenue they would receive.

    Rumours have been floating around the PSP2 will be digital only because publishers requested that Sony doesn’t include a UMD drive. Publishers want digital copies to succeed, a ban on the second hand market may give them less of an incentive to go down that route.

  9. i doubt this is the end of preowned

  10. if i buy a game the game then becomes my property and not the publishers or devs i own the disc the case and the manual and i can do what i want with it if i wanna swell it to a preowned shop cos i get bord of it then i can publishers dont have any right to tell people what they can do with their games that they bought

    • That’s not the case. You’ve bought a license. In the eyes of the law, it makes things very different.

      • then why does the sales of goods act even exist then there no point in that. EULA’s are not law and are not enforceable games become the property of the purchaser once bought therefore i can do whatever i want with my games the disc is mine so yea i can take it to a second hand shop if i want to and sell it to them without a problem it then becomes their property until somebody buys it.

        when HMV buys games from say EA they become the property of HMV until sold then they become my property ,if i buy them and NOT EA’s. Like i said EULA’s are NOT law and as Katy’s already said nobody can prove either way that we agree to the EULA or anything else in the manual as we havent signed anything saying we do

      • You answered your own question – Sale Of Goods Act – you’re not being sold a good, you are takeing out a license. Veh different.

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