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
squashme
it may have worked in the US but i doubt they will get a ban on pre owned games in the EU
tonycawley
Will this discussion ever come to an end? There should just be an agreement between sellers of pre-owned games and the developers/publishers whereby the retailer gives them a small % of the profit and boom, on more arguement. If that means pre-owned games are £2 more expensive, and that £2 goes to the developers and publishers then i’d be quite happy with that result thanks.
billsmugs
I’m pretty sure that all PS3 games say on the back something like “You can’t resell this game without express permission from SCE” So there are a lot of ways that pre-owned retailers can be “attacked” legally.
cc_star
Yes
AFIK all media says something similar, but as the rights holder has never enforced this they may find it difficult to get a judge to take them seriously with regards to games, movies & music.
I think the Autodesk test may be slightly different because software isn’t commonly resold. Obviously it depends how a judge sees it on the day – but as they’ve allowed a 2ndhand market to be created without enforcing that part of the EULA or the conditions about unauthorised lending or reselling a good judge will just to tell them to stop wasting his time and make them pay the costs
stonyk
I think this might be a good thing. I’m getting on a bit now, and by the time this happens my child will be at the age when they can start gaming. Stopping pre owned Market will destroy the gaming industry and hence allow my child to grow up without evil games destroying her innocence an I will be old and useless at gaming soon anyway. Even my wife beats me at modnation….. Sometimes :-(
Padre
Its not quiet as simple as it may seem.
EULA’s are a very grey area of the law. There has been no English case that has found EULA’s to be enforceable. There has been 1 Scottish case that said they were, but many legal eagles are of the opinion that the case and the judgement were flawed. Also the fact that a Scottish ruling is not enforceable in England or Wales, so would have little or no bearing.
When you buy a game you enter into a contract with the retailer, not the publisher of the game, so you are, unless they were made explicitly part of the contract at the time of purchase, not bound by any of the terms of the EULA
Many may argue that you enter into a contract with the copyright holder when you open the case or play the game, this is not so. To enter into a contract with somebody under English law there must be “considerations” from both parties, basically both parties must give the other party something. Seeing as when you purchase a game you don’t actually give the publisher anything, the publisher cannot claim that the EULA is a binding contract.
Of course it could be argued that you enter into an agreement with the copyright holder because you cannot legally use any copyrighted item without the agreement of the copyright holder, but under the copyright designs and patent act 1988, anybody has the legal right to use a copyrighted item as long as the item was purchased legally, so no EUL:A is required for this.
One way to make EULA’s enforceable is for publishers to insist as part of their contract with retailers that people are made aware that any enclosed EULA is part of the contract and that if the purchaser does not agree with the enclosed EULA they may return the item for a refund before they use the software. Then the copyright holder could invoke rights of third parties to contracts.
All the above is pure theory (even though it is sound) at the moment, until there is an English case to test the law fully.
solidsteven
goodbye deals and cheap games. now ii just going to hide all my pre i mean brand new games lol
hazelam
i think i’ve made my views on this one abundantly clear.
remember that cory doctorow lecture i posted a few months back, where he related how publishers have teams of people working on the jargon in those license agreements that basically ignore laws and are designed to be incomprehensible.
on itunes if you buy an audiobook the license agreement is often longer than the book.
all i can say for certain is if this does what the publishers hope i will buy a hell of a lot less games.
and i think the publishers will be surprised when their sales drop quite a bit.
firstly many people trade games to fund new purchases, that will end, and without shops making money from trade ins they will be forced to sell the games for the full rrp, both those will result in less sales.
would mw2 have sold anywhere near as many copies if retailers had sold it for the rrp activision set?
no frakking way would it.
a inferior race
MW2 may not of sold as many copies but you can be pretty sure that it would still be the biggesy game launch ever.
minerwilly
I guess i will just buy and swap pre-owned games from friends cutting out the middle man ie Blockbusters , Cash Converters , Hmv etc and paying even less so happy days .
Perhaps we could even use one of those maps that shows where fellow TSA’ers are on the planet and if nearby arrange to swap or sell . On second thoughts some of your pictures (Bilbo im thinking of you) scare me !
Danza Di Fuoco E Ghiaccio
If I think a game is bad or wasn’t worth the money?… doesn’t that mean that I have to trade it in for a better game? Cause I would be spending around £39.99 and to buy a disappointing long anticipated game I would feel cheated.
DJ Judas
THe problem with this is silence is never acceptance. I’m not sure if we’re actually obligated to read the EULA we supposedly agree to, in which case silence is not acceptance of its conditions.
This is different for PC games where you are presented with an option which must be agreed to to continue.
Additionally, Autodesk licenses are for productivity and education purposes which are fundamentally different to software primarily intended for entertainment.
I doubt there’s anything to worry about yet.