Second Hand Citizens [UPDATED] - ejronin Blog - www.GameInformer.com
Switch Lights

The lights are on

What's Happening

Second Hand Citizens [UPDATED]

Being a second hand purchaser leaves us as second class citizens in the nation of gaming. We're looked at as "double-dippers;" attending the gaming party with games in hand, reaching for the content salsa twice. The industry hates us and it's the biggest public secret, the pink elephant, and our biggest ultimatum. This is a proxy war wherein we're all soldiers of fortune, but who's fortune?

Double dipping, a clear violation of the rules in a gathering; a party foul. Double-dipping refers to the actions of an individual who takes a food item, dips it into a sauce, eats a portion, and then dips into the sauce a second time. Many people find it disgusting to eat or drink after another person, but it's totally cool if by yourself.

Double-dipping can also refer to illegitimate compensation for the same item two times. In the case of games, people who buy used titles are scorned and penalized by having to pay for content access, thus paying for the content usually already on the disc twice; once for the opportunity to access the content, and a second for the actual content. Whether this is "illegitimate" remains a point of debate, but it feels illegitimate to some. 

The industry spends thousands of dollars paying college educated executives to figure out new and exciting ways to get gamers to part with their money. I enjoy gaming so I don't have a problem investing in my own entertainment, but I'm a person who also enjoys some semblance of choice in how I go about being entertained. Apparently choosing what to pay based on the perceived value of a title is beyond my grasp and I have to pay an additional fee to get what is already on the disc I've paid to "own," er license, er... lease?

Slowly the gaming industry has tried to sell the idea that investing in new games helps the industry more than buying used. The industry argument however is that used games create industry poverty (and in a year I expect they'll attempt to imply that buying used games means we hate America and that the terrorists will win). To some extent new games do help the industry but so does buying used games.

Publishers pay developers for their indentured servitude (or maybe that was just Rockstar and EA). When we pay a premium price to publishers, theoretically it pays for future development of future games. When we buy used, it maintains interest and keeps people engaged. With some developers saying "no" to yearly sequels, keeping interest and engaging the audience is important. How many people will go back and buy Halo 1-3, Reach, and ODST when Halo 4 comes out? Probably a lot just to have the collection and relive the story leading up to 4. If their support and interest wasn't there, the revitalization wouldn't be nearly as profound as it may be. Poor initial sales is a steep price for cutting off the nose of used game buyers to spite their face.

Long gone are the days where a used game comes with all the bells and whistles a new copy came with. As the evolution of things like EA's loathed "Online Pass" continue, Sony suddenly locked the entire multiplayer experience of Resistance 3 without the one-time use pass code on the booklet. Meanwhile, EA brings out Season Ticket, and Activision invades the wallet of frugal gamers with "Elite." But wait... there's more. Capcom was "discovered" to implement permanent game saves that can't be wiped. Namco followed suit lending credit to the idea it may be an early experimental "ruination" method for used game buyers much like the ink tags on department stores ruin shoes, pants and dresses - or rather, simply detracting from the assertion of either company that no intent to thwart used sales was present. What really begins to get my goat is the upcoming title "RAGE"

Id Software’s Creative Director Tim Willits has revealed that purchasing Bethesda's upcoming title used will keep several “hatches” on its map locked during the games single player campaign. From an interview with Eurogamer Willits remarks:

If you bought the game new, that would be open for you,” he explained. "You still have to download it, but you don’t have to pay for it. Those 'hatches' are all over. Most people never find them. But as soon as you do, you’re like, oh. And then you start to look for it. That’s our first-time buyer incentive.

From a consumer perspective, I suddenly feel like a second class citizen for a second hand purchase. Used games sales are a primary indicator for the impact of a title and franchise. When retail establishments offer a used title at $20 off new retail six months after release, it is stupid to question why people buy used over new. A few closed hatches might not be that big a deal and this will boil down to what a gamer is willing to go without.

I wonder... have these guys heard the fable about the Goose That Lays the Golden Egg? The moral is you don't kill it. Gamers, new or used buyers are each half of that golden egg laying goose. Killing half the goose may not stop it from laying golden eggs, but I'm pretty sure it'll lay less often and in fewer troy ounces.Either way, when an industry forces a portion of the supporting community to fold and submit, there's the risk of losing that portion of people. With reports of lagging game sales and so one, it seems strange to want to act in spite toward some of the support.

Used item sales have been around for over a century and has not been exclusive to the gaming industry. Pawn shops sell everything from rifles to cameras, and often a console with video games. They may not offer the consumer much in the way of profit return or quality assurance but they're undoubtedly a common source for used consoles and games. They make money from selling the items like GameStop. Rather than try and and adjust the EULA to make explicit lines within the First Sale Doctrine. Currently the term "buy" with regard to software really means "license" but publishers openly admit that what they're doing is "selling." Looking back at Vernor v. Autodesk from a few years back, it seemed Autodesk "won" the battle of used software sales when Vernor was selling used software. Shortly after Autodesk "won,"  the case went to an appellate court.   From an Ars Technica article:

...as Vernor's lawyers pointed out, the distinction between a lease and a sale is based on the actual characteristics of the transaction, not merely on how the transaction is described by the parties. And characterizing AutoCAD as merely licensed, rather than sold, barely passes the straight face test. AutoCAD customers pay a lump sum at the time of purchase, with no obligation to make further payments or to return the software at the conclusion of the supposed lease....In a 21-page decision, Judge Jones sided with Vernor. Citing the 1977 case of United States v. Wise, which involved the sale of used films obtained under dubious circumstances, Jones found that the Ninth Circuit's precedents suggested that the circumstances surrounding the sale of AutoCAD software constituted a sale, not merely a license. Therefore, the First Sale Doctrine applied, and Vernor was not bound by any of the terms in Autodesk's license agreement.... If software is sold, rather than licensed, then no license is required to install and use the software, and the terms of shrink-wrap licenses may not be legally binding.

Of course, this was overturned again and the ruling now stands that we don't own our games, period. They're licensed. If one opens the EA EULA, it states clearly the game was not sold to you (yet doesn't mention anything about resale). In response to the final ruling, the American Library Association states:

...judicial enforcement of software license agreements, which are often contracts of adhesion, could eliminate the software resale market, require used computer sellers to delete legitimate software prior to sale, and increase prices for consumers by reducing price competition for software vendors.

Enter again EA's "Origin."

Other rather interesting supplemental reads, should one be able to acquire them or have the desire to obtain greater depth beyond my personal opinion, I would suggest the following academic and legal opinions:

Digital Exhaustion

Why License Agreements Do Not Constitute Control Copy Ownership

"Glider Case"

A lot of this stuff

It could be argued that "service" can imply support by way of patches, but patches often fix issues within the game prior to sale; a warranty repair of sorts. Sure, we could argue a warranty doesn't have to extend to the second-hand user. I'd agree with that. What I would point out however, is that in a way patches are also ensuring the software is at the ideal based on intent. Developers and publishers selling software have the obligation to sell their intention. I don't believe Dead Island was intended to ship with 37 bugs, so if I buy the title used, there's an entitlement to have the game as the developers intended.

Could there be a case against this on the grounds that no indication is given at the point of sale (or license) that secondary users will have degraded functionality? Doesn't this somehow seem like sale of items under false pretense? Is there justification in crippling the software and charging consumers to reinstate full functionality over a disagreement in philosophy between retailer and publisher? Where is the ethics in enforcing a binding agreement between user and publisher via EULA upon opening a product, if the only method to review the EULA is to open the product?

Perhaps I'm just being paranoid, but looking back people have said the same about previous worries only to find themselves in the midst of wolves once thought lambs, yet I'm the arrogant ass for wanting to buy used games, save a few bucks to invest in a greater number of titles with higher frequency and maintain interest. Pardon me while I crawl back into my hole and await the reappearance of my goat.

In the meantime, ponder this:

Buying and selling used is about the original media and the license with it. The licenses don't actually state the disk cannot be given to another for a sum of money and they don't state an individual cannot lend the software without the involvement of money. So long as the original licensee transfers the original license, it seems legally fair. Look at OEM copies of Windows, volume licenses, enterprise editions, and so on.

What it seems more to me is that developers and publishers want to charge per license, which is fine; they practice this now. If we look at this as though publishers are not selling the software, they're licensing it, then re-selling is not a sub-license (retaining the original license and granting equal rights under the original), and since a disk is required to execute the software, both software and license are transferred as required by law. However, publishers are arguing that despite the number of initial licenses "bought", they'd prefer to get paid per personal experience - attempting to charge for a used title on the grounds that the next person to have the experience or access the content has not paid the publisher directly, under the same context as the original licensee.

When we play games, we all have a slightly different experience. Review sites such as GIO, IGN, CVG, Eurogamer, et. al., often rate games differently followed by droves of gamers commenting on whether they agree or disagree with the review score, lending proof to different experiences or at least different perceptions, thus personal experience in context to a game played isn't qualifiable or quantifiable. Publishers are essentially asking (or slowly forcing, take your pick), authority to place a qualifiable value on social opinion and then charge a set price regardless of time passage while also reserving the right to set the value at zero and stop the support (read: access) at their leisure (read: when it is no longer profitable). Gamers could vote with their wallet, but even games that no one likes have published sequels, rendering the entire concept of wallet based voting rather moot (DJ Hero anyone?).

 


[ADDENDUM]

In response to Fever Ray - and because his comment prompted article worthy response, I'll also put my response to him here]

"If you want to make the car analogy..."

But I don't. It's an apples to oranges comparison that people make, and it's heavily flawed which is why I avoided that analogy in the first place. I get you derived the car argument from the term "lease" but you can lease more than a car. Other leasable items are an apartment, power equipment, a house, furniture; lease is just another word for rent. I can rent a game from Blockbuster for $1.99 a day. And, if the CSR isn't paying attention, get the bonus DLC code if i'm the first to rent it. Where's the outrage from the industry on renting games? How about the outrage where Blockbuster will sell previously rented titles for more than GameStop. the value of the game to the consumer is the same between both retail establishments, but it's GameStop that catches heat - why? because used sales are the majority of their business.

If I were to go lease an HD TV would it be justified that if I didn't buy directly from the manufacturer, I lose HD or function of my HDMI ports? No. I don't repa the benefits of a warranty or repair services from Samsung if I get a used LCD, but that's okay. I don't expect Samsung to grant me a warranty. I do expect that I have full access and functionality of the product, however. Bear in mind that places that lease, buy them outright from the manufacturer - they've been sold already.

"The whole second-class citizens argument is weak to me; if you don't buy from the manufacturer, I fail to see how you're a citizen at all- you're giving no custom to the creator- what do they owe you?"

Hmmm... interesting point. Would you use that same argument in a debate about illegal immigration? If so, then are you aware that the US Constitution provides for people on US soil, not just the citizens? I know that's not the debate here but I'm interested in seeing if your principle is as conditional as it sounds.

A rule of marketing is that the best business is return business and the best advertising is word of mouth. Used games promote return business and shares the experience with others. You don't think Activision doesn't tally their "sales data" with "used" games and reports a general number  there do you? The creator has already been paid for the projected value of the item through the publisher, and the publisher through retailers.  Like most industries, the developer is paid a certain percentage to start the work, then upon completion paid the rest.

What's more is that used games don't typically appear until months after the initial release. By that time the game is considered 'old' and the publishers don't count of income from the title. The only reason they're mad is because someone tapped the market before they did.

No publisher or developer has yet to present factual data on exactly how much money is lost to them in the used game market and no publisher or developer has responded to the fact that when a consumer saves money on a used game, it puts more money in their hand to buy a new one. Additionally, no data supports that there are a group of gamers that ONLY buy used.

Point of fact - less rotation means less money, yet publishers choose not to see that. Used and second-hand sales have been a part of numerous industries - books, clothes, cars, houses, small electronics and yet each one of those industries survive and flourish (partially because of it). I find it laughable to think that an industry that prides itself on creativity is the only one to complain and cry foul.

Cultures do need to change, but how is this "evolutionary" for gamers?

"Conversely, publishers are well within their rights to restrict access to things like online content- or really anything else."

I agree ONLY if the online mode of play is through dedicated servers set up by publishers or developers. In that case, developers and publishers would incur cost when people buying used went online to play. Typically, publishers don't have a dedicated server for a title thus incur no cost when I play online. Madden doesn't use a dedicated server... Medal of Honor wasn't using a dedicated server... Resistence 3 was a first party title so there's a stronger argument for Sony locking the multiplayer, but I did pay full retail for my PS3 and if multiplayer is peer-to-peer, I'm running my game through the hardware I paid for.

Speaking of which, do you seriously think Sony or Microsoft are stepping up and saying "hey, if you buy a used console then we can't make any money?" No. Why? Because it's a false argument.

What about with Capcom and Namco who implemented a permanent save? You don't think it devalues the game when you can't erase the save? In what appears to be an effort to break the incentive to buy a used game cart, a permanent save also means that if the person keeps the game there's no real excitement in playing it a second time. The game is good for a single experience to a single user.

In essence, if I'm to believe that selling or buying used games rapes the industry, then I guess I shouldn't take part in sharing a great experience I had with a game with other people that play games. "Too bad a$$holes, buy your own."

I still feel that to some extent the publishers are sour grapes because they're a leaner middle man than used item retailers. They're using developers and consumers as pawns, and no one thinks that's low - but *** me to hell if I want to get something second-hand?

To quote Michael Pratcher from GI.biz back in '09

If trade-ins occur at GameStop, they should position the trade-in customer to buy more new games than he/she would otherwise normally purchase. Because the average used game value is around 20 per cent of the new game price, we think that used game trade-ins fuel incremental sales of over six per cent of total new game sales, suggesting that the cannibalization from the used game ‘push’ is more than offset by the benefit from used game currency.

comments