Court Ruling May Have Big Impact On Used Game Sales

Publishers have been searching for ways to monetize the used game market this generation, but perhaps a recent court ruling will have a big impact on the entire situation.

As Gamasutra reports, "the U.S. Court of Appeals for the Ninth Circuit has upheld the right of software companies to deny consumers the right to resell their products." The decision came about due to a long-standing case pertaining to used computer software sales on eBay, but the ramifications of that result could be felt by the used video game market. The details of the case in question are as follows:

"The case involved the sale of copies of AutoCAD, software that defendant Timothy Vernor had picked up in an architect's office sale. Vernor then put the software up for sale on auction site eBay, complete with serial numbers and a reassurance that no versions were currently installed on any other machine.

However, AutoCAD's developer, Autodesk, claimed the End User License Agreement (EULA) that users agreed to before using the software stated that the program was merely licensed, not sold, and that the user's license was non-transferable."

So, Autodesk said the copies Vernor had should be destroyed (after Vernor had upgraded to a new version of the software), and the defendant stated that he had not agreed to any license, so was free to sell his copies. The court ruled in favor of Vernor in 2008 but Autodesk filed an appeal and got the decision reversed. The ruling wants to "distinguish between when a piece of software is sold and when it is merely licensed, with the user potentially unable to resell if it's the latter." Said the judge:

"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."

Now that this has been passed, the ripples could be felt in other forms of digital media subject to license agreements, which could prevent users from selling their used video games. In fact, EA's EULA states- "This software is licensed to you, not sold." The entire thing could get very complicated in the coming years, especially because there's one final gray area, when the court added that-

"…congress is free… to modify the first sale doctrine and the essential step defense if it deems these or other policy considerations to require a different approach."