Hope Springs Eternal
(This is followup to my In Defense of Used Games post.)
I believe that eventually we will see the resell of game licenses. Given how our present trajectory is clearly in favor of restrictive limited licenses, games-as-services, and exclusive accounts everywhere, from whence does this optimism spring? Basically, it springs from what I imagine to be an inevitable reconciliation between what is legal and what consumers see as reasonable and/or how they play games in the real world.
I am going to divide this model into roughly two parts: the Practical and the Legal.
The Practical Disconnect
There is an incredible disconnect between what companies write in their ToS/EULAs and how people actually use the products in question. In fact, even the question of what amounts to game piracy is not as clear-cut as you might think. If you download the Tomb Raider reboot off of Pirate Bay, that is clearly piracy, sure. But suppose you let your little brother play the copy that you legally purchased. Is that piracy? Instead of it being a family member, suppose you let a friend come over and play it. Is that (still) piracy? What if you let a complete stranger play your copy of the game?
Now suppose this copy of Tomb Raider in question was purchased on Steam. Does that change anything at the family/friend/stranger level? It does:
“When you complete Steam’s registration process, you create a Steam account (“Account”). Your Account may also include billing information you provide to Valve for the purchase of Subscriptions. You are solely responsible for all activity on your Account and for the security of your computer system. You may not reveal, share or otherwise allow others to use your password or Account. You agree that you are personally responsible for the use of your password and Account and for all of the communication and activity on Steam that results from use of your login name and password. You may not sell or charge others for the right to use your Account, or otherwise transfer your Account, nor may you sell, charge others for the right to use, or transfer any Subscriptions other than if and as expressly permitted by this Agreement (including any Subscription Terms or Rules of Use).”
In our all-digital future, everything is tied to accounts. Ostensively, account-sharing is a bannable offense. In fact, if Valve suspects you shared or sold a given Steam account, it will ban all accounts in your possession, even if nothing untoward was happening in the others. And yet the problem with account-sharing is that it shouldn’t actually be any company’s business who is sitting in the chair, behind the keyboard/controller. I mean, it is technically their business – because they say it is – but it shouldn’t be.
I am not playing WoW right now, despite having multiple level-capped characters and a large sum of gold doing no good to anyone. If I resubscribed and started playing again, Blizzard would be happy. If I resubscribed and let a friend play my character, Blizzard would still be happy… up until the moment they realized what I was doing. But provided we did not alternate log-ins from multiple IP addresses or whatever, there is really no way for Blizzard to tell the difference between us. And yet that is “illegal.” Why? Because presumably the threat of account closure is supposed to induce the friend to purchase their own account/expansions/etc and work their way from scratch.
If letting friends and family members play your games does not count as piracy, neither should letting them log onto your account(s). Indeed, the only way the company would be able to ascertain a difference between users is with intrusive biometric privacy measures like… an always-on IR camera powerful enough to measure your heart rate via body heat to ensure only the True Owner ™ utilizes the account. Otherwise, these measures simply fail unless you attempt to log in from two places simultaneously. These companies are writing rules and contractual terms they have no means of enforcing outside the most heinous of nightmare scenarios. Or, I guess the Honor System.
Perhaps you do believe that your little brother playing your copy of Tomb Raider counts as piracy. In which case I have two questions: 1) why haven’t you turned yourself in, and 2) how far does that really go? Is it piracy for him to watch you play? Or is the crime committed only when he touches the controller? What if it is a strategy game in which he tells you what moves to make, and you simply act as his inputs? Still probably worth a $150,000 fine, wouldn’t you agree?
If companies could go this far, they would. That is the copyright endgame: the limitation of the experience to a single, paying mind. Thankfully, they lack the ability to dictate what happens in the privacy of our homes. Except, you know, for all the times that they can.
The Legal Aspect
“Notably, the ReDigi case turned in large part on the same phrase at issue in Kirtsaeng—whether the copies at issue were “lawfully made” under [the Copyright Act]. In ReDigi, the court held they were not. “The first sale doctrine does not protect ReDigi’s distribution of Capitol’s copyrighted works,” Sullivan held, because the files at issue are “unlawful reproductions” and therefore not “lawfully made.” And, also like Kirtsaeng, the court said the proper venue to decide the core issue—whether buyers of digital products can resell them—is Congress.
“ReDigi effectively requests that the Court amend the [the Copyright Act] to achieve ReDigi’s broader policy goals—goals that happen to advance ReDigi’s economic interests,” Sullivan observed, adding that “amendment of the Copyright Act in line with ReDigi’s proposal is a legislative prerogative that courts are unauthorized and ill-suited to attempt.”
The hinge of the case was that even though ReDigi’s process involved removing the music file from the original computer, technically ReDigi was still “creating” a copy on their own servers by virtue of the transfer process. That was the entire hang-up, or more accurately, the technicality. Even Google tried to get involved in the case by coming to the defense of ReDigi, arguing a judgment against ReDigi “would put the entire cloud computing industry, worth an estimated 41 billion dollars, at risk.”
Incidentally, as pointed out in the concluding paragraphs of the same article:
To make his point, Sullivan stressed that the first sale doctrine does still protect the ability to resell digital music—you can still sell your “computer hard disk, iPod, or other memory device” onto which the file was originally downloaded, he wrote. While conceding that practice might prove to be “onerous,” he suggested there may also be reasons why such “physical limitations” are desirable. “It is left to Congress, and not this Court,” he concluded “to deem them outmoded.”
In other words, you can resell your digital music, as long as you originally downloaded them onto, I dunno, say a $6 MicroSD card. Or a $2-$5 USB stick (which are 1gb in size… Jesus, time flies). Preferably we could cut the bullshit and just print the CD/DVDs ourselves, but I imagine there is no direct-to-CD argument that can be made, else they would have made it.
The salient point here is that the current system is, at best, untenable. As more and more aspects of our lives migrate more fully into the digital realm, Congress will revisit this subject again. Honestly, they really should not have to – it would be better for everyone involved if companies came to this voluntarily. Hell, I have been shitting on the Xbox One pretty often, but Microsoft is apparently putting in a “used digital game” framework, in some murky form or another. It would be the height of irony if Microsoft ended up starting a revolution in the same way that Steam made digital games mainstream. Both Apple and Amazon have patented second-hand digital marketplaces, by the way, but have yet to actually do anything with them.
Some people get the impression that I am anti-IP, or that I am antagonistic to copyright. That is not really the case, although I do believe “life of author + 70 years” is absurd welfare for corporate rent-seekers rather than to the actual benefit of society, e.g. the entire original purpose of copyright. I mean, are there really artists out there that would look at something like Life + 5 years and go “fuck it, I’m not going to bother”? Give me a break.
Anyway, what I desire is for the designers to partner with consumers, for all of us to cooperate for the common good. I don’t like GameStop any more than game designers do – they really are just parasitic middleman – but only one of those two parties actually make efforts to improve consumer surplus, even if it’s just by accident. And if there was any enduring message that came out of the wild internet heyday, it is that you Can’t Stop the Signal. Revenue models are going to have to change, whether you like it or not. If game designers want a piece of the the new paradigm, they have every opportunity to get aboard the train.