Why Are Games Different?

The long time thorny issue of used game sales has reared its head once again. Game Politics has a post about this from a slightly different perspective; how used game sales are driving the development of online multiplayer games. (I thought everyone blamed that on piracy.) However, this topic always raises the same question in my mind.

We all know that the game companies don’t like it because they’d like everyone to buy a new copy. That’s fair enough. Calling it piracy as some do though? Well that’s a different matter. And it’s wrong. In the US and Australia, consumers have the legal right to resell property they have legally purchased. If it’s legal, it is not piracy.

The game companies and their representatives however claim that games are different. My question is how are they different?

Games are software. So are DVDs. A lot of modern DVDs come with special software encoding, some have games on the disk, and all the menus and special features are software driven. And I can legally give away or sell my DVD. I can buy used DVDs from the local video store.

Games have stories. So do books. I can borrow books from libraries. I can also borrow games from some stores. There are a gazillion used book stores; you can find them in any city. I can give a book to a friend.

Games are art. Once again, I can buy second hand art anywhere. Go to the local trash-and-treasure market and you’ll find all kinds of art for sale, most of it ‘used.’

Games are copyright. Sure. So are all the above. Books, movies, even artworks are covered under copyright. They are all legally available as second hand products. Copyright only covers copying a protected item without permission, and even then there are exceptions given under fair use provisions.

Games are licenced. This is the rub. A lot of companies sell their games under licence, many of which only require  the consumer to open the package without a signature. These licences are supposed to form contracts with the end user, and by opening the package the user often gives up some rights. However, some rights cannot be given away. Depending on which state and country you live in the provisions for re-selling may be one of those rights that can’t be given away.

But the licence issue is a sticky one. What’s to stop a book publisher putting fine print in the copyright section of a book limiting your right to re-sell or give away the book after the original purchase? What’s to prevent a DVD publisher somehow locking a DVD to the original purchaser and claiming that the DVD is licenced only to you?

It seems that consumers are slowly having their rights whittled away under dubious licences.

Why shouldn’t consumers be allowed to sell their old games, what makes games so special under the law?