Are the Orbis and Durango Anti-Used Game Technologies Legal? Maybe Not

Senior Contributor
04.02.12 8 Comments
As we know, the PlayStation 4, or as we’re calling it, Roy, and the NextBox720 or whatever, will probably have anti-used game functions built in. You can buy a used game, but it’ll only be a trial version.

Here’s the problem that Sony and Microsoft likely fully realize and are hoping you don’t: in the United States, at least, this might not actually be legal, and there are, in fact, a few places that’s it’s completely against the law.

Let’s put on our law nerd caps and talk about what’s going on when you buy a copy of a copyrighted product. That purchase is covered under what’s called “the first-sale doctrine”. Summed up simply, that doctrine says once you buy a product, even if it contains a copyrighted work, you own the copy and can resell it, use it as a coaster, whatever, it’s yours. You own it, and the copyright owner can’t do a damn thing about it.

If this sounds like something that’s really going to pee in the gaming industry’s punch, well, kind of. In fact, it becomes pretty grey and murky, pretty fast.

Software companies would like you to believe you’re only “licensing” the software from them under the End User Licence Agreement. But it’s not that simple: recent rulings have stated that EULAs are binding contracts…but that the first sale doctrine also applies. So, in theory, if you were, say, given some software for Christmas, you could sell it under the law, but if you bought it yourself, you’d be bound by the EULA.

But wait, lawyers will say! Video games have a special exception! Which they do: a law was passed in 1990 making it illegal to rent a game and copy it, which is probably the law that Sony and Microsoft are leaning on, since the unintended effect is that it restricts the copyright on video games. But that’s not the end of it.

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