The Line that Needs to be Drawn: The Used Games Issue


Sometimes, I wonder what the future is going to think of this decade.  We’re only three years in, and we’ve already had so many high profile fights about the nature of intellectual property in our new technology, and that’s not looking to change anytime soon.  America’s existing intellectual property laws are antiquated and in desperate need of updating, yet said updating could easily trample all over the consumer’s rights, as demonstrated by both SOPA and the recent Xbox One debacle.  This is an issue that we’re going to see rise up again and again in the coming years, and we’re going to need to be vigilant to ensure that the rights of ourselves as consumers are being respected.

Just a couple of hours ago, the guys at Microsoft announced that they’re backtracking on the whole online check-in/used games issue.  They will respect the standard ownership rights over physical property, and they won’t require the Xbox One to be tethered to an internet connection to function.  And on a side note, that announcement is the first piece of Xbox One publicity that looks to have had the PR oversight Microsoft’s been so desperately needing since the console was announced.  This announcement is a very good thing.  However, stuff like this is going to come up again and again.  There are many corporations, especially among the largest in the game industry, who will happily use their power to force through wildly anti-consumer practices.  We’ve seen it often in recent years with the advent of particularly restrictive and invasive DRM.  Luckily, the Xbox One’s change in policy also helps to illustrate what exactly we need to be doing when our rights are challenged:  we need to argue, and we need to argue wisely, loudly, and consistently.

That’s really the greatest tool available to us as consumers.  There’s not much else we can count on.  We don’t have a consumer protection group specifically for video games, and general groups such as the Better Business Bureau have systems that are pretty easy for experienced companies to take advantage of.  And while the Xbox One’s policy would likely violate the 1st Sale Doctrine that Valve’s been accused of breaking all around Europe, we haven’t had enough high profile cases on it in America to get an accurate gauge of which way our courts would go.  Besides, we probably don’t want it to get that far.  If it became a major case, and the courts ruled against it, the game industry would likely be motivated to try and get the law changed in their favor.  Most of the other players in the entertainment industry would have every motivation to back them, and while the Entertainment Consumers Organization would fight against it, they’re really no match for the entertainment industry’s lobbyists.  And Congress doesn’t exactly have a good track record of valuing the individual citizens over the corporations.

So in a practical manner, we’re on our own.  However, as the Xbox One Retraction shows, we can do a lot on our own.  The internet gives us a lot of power to not only argue our point, but to be heard.  It gives us the power to hit these corporations both in the ego and in the bank account.  It’s what beat SOPA.  Through our strong, vocal, and consistent objections, we gave SOPA’s opponents in Congress ammunition and caused SOPA’s supporters to back down.  And it’s exactly what protected our rights here.  The Xbox One gave companies like EA, Ubisoft, and Activision Blizzard exactly what they’ve been screaming for over years, yet in the face of our opposition, they all left Microsoft to hold the line alone.  And make no mistake, we made a difference in that.  In spite of whatever official statements they may make, if we had let the used games issue pass quietly, these companies would have heralded the Xbox One used game policy as the game industry’s messiah.  It was our objections that enabled Sony to make such a huge statement out of simply keeping the status quo with their next console.  It was our making our intended consequences of this policy know that led to the fluctuations of Microsoft’s stock price that, although not exactly huge, still would have made the execs take notice.  So pat yourself on the back.  It was through our collective work that we were able to ensure our ownership rights go unmolested.

But this will come again.  It may not be in the same form as the Xbox One, but another company will come along with more power than goodwill and try to take more ownership rights away from us.  And we’ll need to handle it the same way as we handled this used games issue, and as we handled SOPA, and as we handled SecuROM.  We need to make some noise.  We need to make sure the companies attempting to seize our rights, as well as those who haven’t yet been informed, know that we’re angry and why.  We need to articulate our points in a reasonable and sensible matter, so that the heart of the issue is better understood by all.  And we need to do something the internet is horrible at doing, and keep the pressure on.  If we’re going to maintain our ownership rights over the physical pieces of intellectual property we buy, we can’t compromise on that.  We can’t get bored and leave the matter behind us, nor can we take small concessions in place of the rights we once had.  The internet age has given us more power than we ever had before in communicating with large companies, and these companies are listening.  Begrudgingly maybe, but they are listening.  We need to stay vigilant, and make sure that we’re using our ability to argue properly to uphold our ownership rights.

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