Joystiq

LGJ: Are game resales at risk?

Mark Methenitis — Wed, 15 Sep 2010 22:00:00 EST

Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

A new decision out of the 9th Circuit court of appeals is potentially bad news for GameStop, eBay, gamers and pretty much anyone who buys software. The full decision in Vernor v. Autodesk is available here [PDF], but this column should provide a pretty good summary and analysis of the case, which deals primarily with a legal concept called the "first-sale doctrine." The doctrine, which falls under copyright law, is what allows libraries to lend books, DVDs, CDs, etc., and what allows for the concept of resale.

The first-sale doctrine was added to the Copyright Act of 1976 after being introduced in case law in 1908. In short, the doctrine lets you, as the purchaser of a legal copy of a book, movie, game, or other copyrighted work, resell or give away that legal copy to subsequent owners without permission from the copyright holder. It doesn't give you any rights to the work protected by the copyright, or the ability to otherwise violate the copyright by making copies of the work; it only removes the copyright holder's control over legal, physical copies of the work after they are first sold to a consumer. In other words, GameStop's business owes everything to this doctrine.

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LGJ: Are game resales at risk? originally appeared on Joystiq on Wed, 15 Sep 2010 22:00:00 EST. Please see our terms for use of feeds.

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LGJ: First Sale and Digital Distribution

Mark Methenitis — Thu, 13 Aug 2009 20:00:00 EST

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Ever since the Glider opinion was handed down late last year, there's been a resurgence of calls for courts to uphold the first sale doctrine with regard to all software. One such suit, featured in the latest Jurimetrics, concerned ligation over consumers as "owners" versus "licensees," since different copyright rights are granted based on the particular status. The court determined that players were licensees, thus negating certain rights of owners. We've talked about first sale before in LGJ, but generally in the context of retail products. In the context of retail games, no matter where you stand on the "owner" versus "licensee" position, nothing is stopping you from reselling the copy of the game you purchased.

Digital distribution changes this dynamic dramatically, however. As digital distribution mechanisms become more and more popular, it seems inevitable that the courts will have to eventually weigh in further on the owner versus licensee question. In fact, if those who run digital distribution systems wish to steer well clear of potential government involvement in their businesses, inclusion of certain features may mitigate the first sale question so that consumers have more rights and aren't in need of protection in that regard.

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LGJ: First Sale and Digital Distribution originally appeared on Joystiq on Thu, 13 Aug 2009 20:00:00 EST. Please see our terms for use of feeds.

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LGJ: First Sale, Re-Sale, Everything's on SALE!

Mark Methenitis — Fri, 17 Oct 2008 10:30:00 EST

Filed under: Features

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

While it seems like the rest of the known universe is busy talking about subprime mortgages and bailouts, the game industry and associated news outlets have been talking about sales. Specifically, they've been talking about resales, and how that's affected by the first sale doctrine. The most recent development has been talk of incentives to buy Gears of War 2 new, but even that's in the wake of the recent comments from Marty O'Donnell, which has been commented on in other columns on Joystiq. Of course, none of this quite gets to the root of the issue: What is this first sale doctrine and why does it exist? More importantly, assuming it applies to all kinds of software, is there another way to accomplish what we're doing now within those legal constraints?

So, let's start at square one. The first sale doctrine is a rule which says, in short, that once an item that is copyrighted is first sold, then the author no longer has the ability to prevent the resale of that item through copyright law. Without the first sale rule, a copyright holder could theoretically continue to control the item because copyright includes the right of distribution. The first sale doctrine, however, does not protect someone who bought an item if they're illegally reproducing it, for example. It only allows for the legitimate resale of the item itself. The courts have even recently held that this idea extends to demo CDs marked not for resale.

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LGJ: First Sale, Re-Sale, Everything's on SALE! originally appeared on Joystiq on Fri, 17 Oct 2008 10:30:00 EST. Please see our terms for use of feeds.

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