French Consumer Group Tries To Win Back Resale Rights For Digitally Distributed Games

from the here's-hoping dept

We talk a lot about first sale rights and resale rights at Techdirt, but of particular frustration to me is the strange capitulation to companies that sell digital copies of software. This isn't a strictly American problem, though here in the States there has been a near total abandonment of the consumer's rights when it comes to electronically delivered entertainment, be it eBooks, music, movies or games. The "you're licensing the game you paid for, not buying it" line is, on its face, ridiculous, amounting to a situation where Game "X" bought on a disc can be resold, but Game "X" bought and delivered on the internet cannot. Why a delivery method would alter the right to resale a bought product because a EULA says so is a concept that simply escapes me.

Across the pond, a French consumer group appears to agree, and it is trying to specifically attack Steam and Valve on this front.

The 64-year-old UFC-Que Choisir (the "federal union of consumers") argues that Valve must provide the capability for Steam users to resell their legally purchased digital games whenever they want. While noting that many online stores have similar resale restrictions, the group argues that the difference between being able to resell a physical game disc and not being able to resell a digitally purchased game is "incomprehensible... No court decision prohibits the resale on the second-hand market games bought online, and the European Court has even explicitly stated that it’s possible to resell software which, let’s remember, is an integral part of a video game."
As that ArsTechnica piece updates further down the post, there's some question as to exactly how true that statement is. There have been European court rulings that specifically drew a distinction between software in general and software that contained a creative component. But that seems like an awfully fine line to draw as the basis for removing a consumer's right to resell what they've bought.

An aside: Imagine applying this situation to other forms of intellectual property law, for instance. Trademark chiefly revolves around real or potential customer confusion. To that end, governments employing trademark law claim to be concerned about the public's ability to understand what they're buying. Yet, when it comes to resale rights, this interest in customer confusion evaporates. Anyone wishing to claim that the average purchaser of a Steam game wouldn't be surprised to find its the seller's opinion that they haven't actually bought the game in the traditional sense at all may do so, but I reserve the right to laugh them out of the conversation.

What makes UFC-Que Choisir's claim particularly interesting is that it coupled its demand for resale rights on digital games with an attack for Valve's claim of ownership over user-created content.
In addition to the resale complaint, UFC-Que Choisir takes Valve to task for claiming the right to reuse any user-created content on Steam "at will." This clause "denies... respect for the users'/creators' rights of intellectual property," the group says.
This would seem to ask Valve and game-sellers to pick a lane: either creative content is worthy of protection or it isn't. Using a creative component of content to deny consumers their resale rights while then happily making use of those same consumers' creative works at the same time isn't consistent.

Now, to be clear, most of the people reviewing this attempt believe it will fail. We can hope, however, that some court somewhere might take the side of the consumer and their rights regarding digital purchases.

Filed Under: digital distribution, first sale, france, resale rights, steam, video games
Companies: valve


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  • icon
    Ninja (profile), 29 Dec 2015 @ 5:33am

    It shouldn't fail. At all. But it will face fierce opposition. Remember some top game companies even tried adding codes that were one use only to prevent or at least discourage reselling. Steam gave them paradise, of course they aren't giving up that easily.

    reply to this | link to this | view in chronology ]

    • icon
      Almost Anonymous (profile), 29 Dec 2015 @ 11:20am

      Re:

      Yeah, was going to point out the same thing. They use one-time key codes to lock down the software, owning the disc doesn't really mean much of anything anymore. Whats worse, the disc often doesn't even have much if any of the actual content on it! You start the install from the disc, then Steam or some other online tool just downloads the actual files and installs them.

      reply to this | link to this | view in chronology ]

  • icon
    TheResidentSkeptic (profile), 29 Dec 2015 @ 5:43am

    This battle will last for decades

    Point/Counter-point

    A "Tangible" makes it handed off to the new owner; you can't keep a book and sell it to someone else; same with a "Disk" that must be in the device to be played.

    An "Intangible" can be copied; you sell it, and you keep it.

    Of course, the "Disk" could be copied - but online ID/MAC/IP tracking/registration makes doing so blockable via DRM and its ilk.

    This just puts blind fear into some folks. And that blind fear blocks all rational thought.

    Someone should tally all the legal expenses involved in all the cases - probably enough to have built a working starship by the time this is over.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Dec 2015 @ 6:27am

      Re: This battle will last for decades

      Please name just one solution with DRM that prevents piracy? Just one that works. You cant as it does not exist

      reply to this | link to this | view in chronology ]

      • icon
        Almost Anonymous (profile), 29 Dec 2015 @ 11:23am

        Re: Re: This battle will last for decades

        Actually, Denuvo has been doing a surprisingly good job of preventing piracy. I never thought I'd see the day, but the scene is having a very tough time cracking that nut. And so far, the software using Denuvo that has been cracked performs sub-optimally.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Dec 2015 @ 7:57am

      Re: This battle will last for decades

      The battle will continue so long as the sellers insist on charging the same or comparable price for digital editions vs physical media. Thus far music distribution is at a reasonable price point (USD $.99/song, $9.99/album average vs $14.99/CD) and movies are not far behind. Ebooks needs to explain why they have different incompatible formats as well as why their prices are the same or comparable to dead tree versions if they hope to gain more market. And games? Yep, when I have to pay $39.00 or more for a box off the shelf only to find a digital download card inside and not physical media: sorry, I just lost interest.

      reply to this | link to this | view in chronology ]

  • identicon
    KingComment, 29 Dec 2015 @ 8:03am

    burn it

    Put it onna disk and sell it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Dec 2015 @ 8:24am

    I'd like to disagree on the articles point on inconsistency. I think its very consistsnt to both claim theres a creative element and that they own user's uploads.

    We see this as a normal thing in business, *especially* in IP law - if you are working for a business, using thier resourses of any kind to develop some software or something on your own time, they will try and claim ownership.
    Likewise, it shields them from any need to have to arbitrate takedowns on content that is uploaded to them - they can just whiff it away when they get a complaint because its not yours. Most modding agreements or custom content sections are like this for a large portion of games as well - not just the distributors of games, but the developers, have such content creation sections in their Eulas. Its what allows them to go around doing featured content and incorporating really good mods / content for their games. A lot of indie games out there will take custom maps made by users and put them into the game, or custom builds in sandbox construction games, etc

    It boils down to the mentality of "Its our software, we made it, so any idea you generate based on it is also ours", taken as given, which is then used to justify all sorts of things.

    This is a really normal thing for companies to do. I would argue that its probably unethical, possibly illogical, but its certainly *consistant* with the norm of corporate behavior.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Dec 2015 @ 8:49am

      Re:

      There is one significant difference, of course. In the case of an employee using an employer's resources to develop something, the employee is being paid by the employer to do just that.

      In the hosted gaming world, it is the players/subscribers who are paying to use the resources.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Dec 2015 @ 8:28am

    Curious how that would work

    So, let's say that the court says it's ok to resell digital copies. Sweet! That means I can sell the 50+ games I never play on Steam. But how would that work, exactly?

    I would assume that I can't sell my digital copy to anyone outside of my chosen walled garden (i.e. Steam, Origin, etc.).

    I would also assume that I can sell it for whatever price I wish, just like physical media.

    So, continuing to use Steam as an example, it would kind of like the marketplace they already have implemented. X number of copies can be bought from users at a certain price point. After a time that price would reflect the "true value" of the digital product, or the value that the most amount of people are willing to pay.

    Here is where I see the hiccup: Why would I ever, ever buy a digital product at the publisher's/Steam's price point when I can an buy an identical digital copy from a user for a lower price point?

    Also, the Steam/publisher price will determine where the user price is. If an item goes on sale, then the user price point will follow. Again, the only time someone would ever buy a "full price" digital copy from Steam is when there aren't any user copies available.

    And since the product is infinitely reproducible, the value of that product will never exceed the Steam price. Well, if Steam decided to stop selling a specific digital product that would increase the value on the user market since there are now a finite amount of extant digital copies, but that would seem counterproductive to, you know, making money.

    What about games outside of walled gardens? The DRM-free stuff (which I love, btw). How do you keep track of who owns what license without DRM? What would prevent me from selling an infinite amount of copies of GoG version of Witcher 3 for $1 without some sort of DRM in place proving that my copy was transferred to another party? You would have to have a version of DRM to prevent that exact scenario, which would defeat the purpose of selling a game sans DRM in the first place.

    And in what way will the seller be compensated for selling their digital copy? Steam credit? Will Valve mail them a check? Will there be a way to me to sell a game on Steam and then use that money to buy a game on Origin? If not, then the seller doesn't really have resale right, do they? They would only have the right to put whatever license key back in to the ecosystem they pulled it from. They couldn't sell a game to help pay the water bill.

    Tell me I'm crazy.

    reply to this | link to this | view in chronology ]

    • icon
      Chronno S. Trigger (profile), 29 Dec 2015 @ 8:49am

      Re: Curious how that would work

      You're not crazy, but a lot of your points have already been dealt with in the physical market.

      No, you wouldn't be able to sell outside of your chosen walled garden. It's a game on the Steam platform, why would you expect to sell it to a different platform? Same as selling a used Xbox One game. Why would you expect to sell it to a PS4 user? Different companies will setup their own markets (just like how there are plenty of other markets to sell Steam games), but it'll still be just Steam keys.

      The price is, yes, going to be linked to the price of the full game. Just like the current used market. Ain't no one going to buy a used game that cost more than a new one and the seller is always going to want as much money as possible.

      Steam credit is possible as a payment method. Game Stop only pays in store credit. But having a system for Pay Pal could easily be set up.

      CDs, DVDs, Blue-Rays (while all have DRM) are easy to copy. What's to prevent someone from buying a CD, copying it, and selling it? In all practical sense, nothing but the law. The same would apply with digital goods.

      You do make one vary good point, why would anyone buy a new copy if a "used" copy is available? The used copy is identical since the source files are the same. This is something we're going to have to figure out sooner or latter as more and more of the world becomes digital.

      reply to this | link to this | view in chronology ]

      • icon
        Almost Anonymous (profile), 29 Dec 2015 @ 11:29am

        Re: Re: Curious how that would work

        You do make one vary good point, why would anyone buy a new copy if a "used" copy is available?
        Actually, this is the simplest to answer. Early adoption. There are always those folks that want to be first to own the newest car, the best video card, the hottest new game. That comes at a premium of course, but they know this and accept it as the cost of getting it "first". And then there are the folks that will wait until a $60 game winds up in the $5 bin before they buy it. Digital selling doesn't really change anything on that score, except that the price will match a more "real" value quicker than it used to.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 30 Dec 2015 @ 5:28am

          Re: Re: Re: Curious how that would work

          Are you trying to say people still buy hardcover books even though they can get a softcover or a used copy much cheaper?

          I thought the new bookstores went out of business once the used bookstores opened.

          reply to this | link to this | view in chronology ]

      • icon
        Ninja (profile), 29 Dec 2015 @ 11:32am

        Re: Re: Curious how that would work

        From my experience the stores usually are choke-full of bad titles. You can find dozens of copy of [insert crap game here] and thus they sell for a very low price. But try to find used hits like [insert awesomely good game here]. You won't find it easily. I suspect the same would happen on an online market. I would never sell my Skyrim copy for instance.

        I don't see why Steam would stop selling something instead of keep selling it and decreasing the price once the novelty aspect fades. Still, in our dysfunctional copyright world this can happen anytime. In that specific case, Steam MUST provide the game for those that have already acquired. In that specific case the used market would be very important and would benefit from this move. And I'm not even mentioning that money got from used sales is usually directed for new games so the used market actually benefits the new games.

        So I guess it's not only feasible, it's a must.

        reply to this | link to this | view in chronology ]

    • identicon
      kog999, 29 Dec 2015 @ 8:57am

      Re: Curious how that would work

      "I would assume that I can't sell my digital copy to anyone outside of my chosen walled garden"

      if that's the case steam will just add a hefty transfer fee to each transaction.


      "What about games outside of walled gardens? The DRM-free stuff (which I love, btw). How do you keep track of who owns what license without DRM? What would prevent me from selling an infinite amount of copies of GoG version of Witcher 3 for $1 without some sort of DRM in place proving that my copy was transferred to another party?"

      whats to stop you from downloading a free copy from the pirate bay. The same thing nothing yet Witcher 3 still made money.

      reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 29 Dec 2015 @ 10:03am

    The "you're licensing the game you paid for, not buying it" line is, on its face, ridiculous, amounting to a situation where Game "X" bought on a disc can be resold, but Game "X" bought and delivered on the internet cannot.

    Steam prevents the resale of physical copies of games as well. Even if you buy a retail, boxed copy of a Steam game, that game needs to be registered to a Steam account before it can be played. Once registered, it is tied to that account forever. It can never be registered to another account. In order to play that game, you need to buy a copy through Steam, which makes the buying of a used physical copy pointless, unless you just want to have a boxed copy for your collection.

    So while you can technically sell the actual disc or buy a used copy, that disc will be useless since the game will already be registered to another account. It's like saying that you're free to sell your car, but first the engine must be melted and the axles welded so that it the new owner can never drive it. It complies with the letter of the law, but not the spirit of the law.

    reply to this | link to this | view in chronology ]

  • icon
    tqk (profile), 29 Dec 2015 @ 11:01am

    "Creative component"?

    There have been European court rulings that specifically drew a distinction between software in general and software that contained a creative component.

    The computer programmer in me tells me they know nothing about computer programming.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Dec 2015 @ 4:04pm

    next week

    "The resale rights of piss and water"

    reply to this | link to this | view in chronology ]


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