German Court Rules Against Rights To Resell Steam Games

By John Walker on February 10th, 2014 at 1:00 pm.

In a perhaps not too surprising result, the case in Germany brought against Valve that attempted to demonstrate the right to resell Steam games was lost last week. Brought by German consumer group Verbraucherzentrale Bundesverband (vzbv), this was a second attempt to see a court rule that consumers have the right to resell their Steam games. Like you can with any physical gaming product. And for a second time, the courts ruled against it.

It’s peculiar. As Muktware reports, this second attempt happened after the 2012 ruling of the Court of Justice of the European Union (CJEU) ruled that people should have the right to resell downloaded products, and that it wasn’t okay for a publisher to stop them with a EULA. Bearing this in mind, the consumer group assumed it would make sense to follow this by ruling that gamers had a right to resell products bought from Valve’s Steam. But no.

It all comes down to the “doctrine of exhaustion”. As Osborne Clark’s comprehensive coverage of the ruling explains, exhaustion is the principle where a copyright owner’s right to control individual copies of their material is limited after a sale – their right to control distribution is exhausted by that initial sale. Although despite this being law in the EU and US, there doesn’t seem to be any notion of this being applied to digital content.

Right now, if you buy a game from Steam, it’s locked into your Steam account. You can’t give it to someone else when you’re finished with it, nor sell it on as a second-hand game. What vzbv were attempting to argue their first time out was that Valve were in violation of the laws on exhaustion by preventing Steam users from being able to sell on or transfer their online account.

It’s of note that Valve could have, at this point, said: “Oh yeah, fair enough, we could do better at this.” With their desires to be offering the best for consumers and consumers’ interests, this would have been another opportunity for Valve to embrace that philosophy, and provide their customers with the barest of rights of ownership.

Valve fought it and won, and in 2010 the suit was dismissed. The ruling, according to Osborne Clark, said,

“While the doctrine of exhaustion limited the rights holders’ powers with regards to an individual DVD, it did not require them to design their business in a way that facilitated the sale of used games and therefore did not make the Steam terms of service unenforceable.”

Come that 2012 ruling from the EU courts that the doctrine of exhaustion does apply to digital content, you can see why vzbv saw cause to return to the matter. They’d lost because a judge ruled it didn’t apply to digital products, but now there was a bigger, louder ruling that digital content consumers should be protected in the same way. Despite the intangibility of an online purchase, it seemed that a court was finally recognising that the last of a plastic carrier shouldn’t change a consumer’s rights.

However, it’s never that simple.

The CJEU ruling was based on a case between UsedSoft and Oracle, which stated that various flargleblargle provisions in the elaborately arcane rules (that were created when content was split physical and digital) meant that exhaustion did apply to “intangible copies”, and that therefore, the doctrine needed to be applied to modern-day e-shopping. However, and here is where a law student can find enough material to write their dissertation, it seems that this may only apply to “computer software”. And that video games may not actually count as “computer software” because of their “audiovisual components”. They’re “not only computer software” (emphasis mine). And it’s this distinction that excludes games from the CJEU UsedSoft ruling, and allowed the German courts to hand victory to Valve once again.

There’s a degree of rationale behind these decisions, that perhaps extends beyond aggressively protecting copyrights against consumer interests. Were it to be ruled that the digital content of a game can be sold on, it makes it a lot harder to enforce rules against piracy. While such a freedom given to consumers would technically mean that only one copy of the game could ever move on from person to person, it would certainly introduce some blurred lines when it came to file sharing, and so forth.

However, there’s something crucial to remember about all this: Valve could be extending the basic consumer rights of reselling or sharing individual purchased copies of a game to their customers. Steam itself provides a framework that makes this possible. The ability to buy a game and then either keep it in your account, or gift it to another, demonstrates that the infrastructure is already in place to allow the transfer of ownership of Steam games. And while courts may avoid making rulings that apply long-standard rights to online content, for fear of opening doors to piracy, Valve would have no such concern if it offered this within its own fences. It is perfectly possible for Valve to allow customers to buy a game, play it for as long as they wish, and then transfer that uniquely coded copy of that game to someone else, either for free, or for an agreed fee. Heck – doing it through their own software, they could even enforce a chunk of that money reach the developer or publisher at the time. Not that this would be in accordance with the doctrine of exhaustion either.

But, so far, they’re not.

Original version of top image by Jonund.

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269 Comments »

Top comments

  1. Gap Gen says:

    I’m going to teach my children that respecting the exchange of goods and services for legal tender is caring.

  1. Senethro says:

    I’d like more rights and all but being honest, me and my friends would just end up buying one game and passing it between all of us. I already did that with Amiga games in primary school but I guess noone cared very much then because kids didn’t have the internet then.

    • FuriKuri says:

      Oh they cared. Don’t copy that floppy!

      The online era has just given them unparalleled control, is all. It’s all bullshit, stupidity and greed of course.

    • John Walker says:

      Yes, but it was (and still is) your legal right to do that.

      • DarksDaemon says:

        Whilst it may be your legal right, it may not be a moral one. Like Senethro stated, many would just buy a single copy and pass it around, reducing the sales of games and money out of the developers pocket, I know this is similar to the piracy argument “Is a pirated game a lost sale” (it isn’t necessarily), but this time around it’s not, it’s “Is a preowned game a lost sale” (It is)

        • P.Funk says:

          So it would basically be no different than friends sharing a console game disc.

          Wow, that’s going to destroy gaming….

        • Sunjumper says:

          You mean like it is amoral to lend a book, a DVD, a BluRay or a CD from a friend or buying them second hand is amoral? Because all these instances carry the same problem with them. As does borrowing or buying console games. You could argue that the digital nature of the product is more convenient and thus making borrowing much easier but this does not change the morality of the act.
          Also so far despite the loud protests from some industry corners the neither borrowing nor the second hand market seems to have ruined the industry which is still an economic juggernaut that rivals the film industry.

          • AngelTear says:

            Now, maybe I’m splitting hair here, but I see a significant difference between lending to a friend and re-selling to the wider world.
            And not just because in the latter case there’s an exchange of money as well, but because the circle of family and close friends you’re likely to lend your game to is rather small and doesn’t affect the market at large. While re-selling to anyone makes people more likely to buy your used game over the new game.

            I can see how it could be seen as immoral, insofar as the creators deserve to be paid for their work, in the case of re-selling.

          • P.Funk says:

            But people used to resell their games all the time before digital distribution. Did anyone call that immoral? I bought BF2 for $10 on craigslist so I could play Project Reality years ago. Am I an amoral motherfucker?

            You tell me.

          • Wisq says:

            (replied to wrong thread, sorry)

        • Wulfram says:

          Try applying that logic to any other product we buy. Cars, chairs, computers etc

          If we bought it, we should be able to resell it. The logic that it’s somehow unfair on the developers that Bill and Bob play the game for 20 hours each, but OK for Bob to play himself for 200 hours escapes me.

          Steam shouldn’t be obliged to accomodate reselling, but the alternative should be establishing a right to strip the DRM out of the game and resell it that way. Which wouldn’t be ideal because it would be impossible to enforce that the seller was depriving themselves of their own copy.

          • AngelTear says:

            To be fair, there’s a major difference between anything material and digital goods. Material goods degrade with time and use, so buying second-hand means buying something that is not as good as new, so people have an incentive to buy new at full price or compromise and buy second hand at a lower price.

            With digital goods, there’s literally zero incentive to buy new over used, because it’s exactly the same, non-degradable product.

            Also, scarcity. Material goods aren’t reproducible without effort, while digital goods are, so it makes more sense to buy a used chair instead of manufacturing a new one from its raw materials. Games aren’t scarce from the start, and that makes a huge difference to the way they should be sold and re-sold.

          • Sheng-ji says:

            Many games have online codes which only allows the original purchaser to access multiplayer, so for these games you can indeed say, yes the second hand copy is not as good as new, and it makes perfect sense for this restriction – servers have an ongoing cost associated with them.

          • Wulfram says:

            Gold and Diamonds don’t degrade. Wines and Antique cars can gain in value as they age. Degrading isn’t a requirement to have the right to resell things.

            As for scarcity, we have artificially imposed scarcity via copyright. Get rid of that, and then we can talk about how lack of scarcity makes the software business different. And I don’t think we should lose consumer rights because the sellers have no marginal costs

          • melnificent says:

            @Sheng-Ji Ongoing server costs was the PR reason for online passes. Look at EAs list of shutdown servers http://www.ea.com/1/service-updates I’m not doing the breakdown, but a good selection of them were online pass supported so that they wouldn’t be shut down.

          • Shuck says:

            @Wulfram: Wine and antiques become can become more valuable over time because A) they were produced in a limited run to begin with, and B) they became more rare over time. Neither of these things is true about digitally distributed goods. Gold and diamonds may not degrade, but they do get used (and lost, etc.). Digging up a quantity to add to the market has significant costs. They can also go down in value. Not to mention that diamonds only have value in the first place because a near-monopoly has imposed artificial scarcity. None of that is relevant to games.

          • rock_paper_shotgun says:

            Agreed very much that once something is purchased whether or not it is digital it is mine and I should be allowed to do anything I want to it including resell it. As you stated quite clearly degredation of an object has nothing to do with resell value.

          • rock_paper_shotgun says:

            @shuck

            Restricting resale is the same as “artificial scarcity”.

          • Shuck says:

            @rock_paper_shotgun: It most certainly isn’t. That’s an extremely silly thing to claim. If you can buy the item an infinite number of times from the retailer (and from more than one retailer), there’s no scarcity.

          • Sheng-ji says:

            @Mel – yeah, some less than scrupulous people lie about that kind of stuff, but the company I worked for, server costs were significant and although we didn’t implement online passes, it was considered seriously so that we could keep servers running over a decade after the game was released – so that people who bought our games second hand could continue to enjoy online gaming. In the end we paid for that ourselves and had to cut budgets for the latest game by 15% – a very significant cut!

          • ohminus says:

            While digital goods don’t “degrade”, that’s an irrelevant argument. What is relevant is whether there is deprecation. Physical degradation is just one aspect of that. And there definitely IS deprecation with games. Ask yourself this: If you were to sell your CDs of Wing Commander IV today, what would be the important factor for the price: The physical degradation of the CDs? Unless you broke or scratched them, no. What would be the important factor is that it’s an old game.

            So the argument that digital goods don’t degrade is not a valid one. We’re not in the age of floppy disks any more that might lose data is you keep them too close to a magnet, let them get too hot etc.

          • Wisq says:

            While digital goods don’t “degrade”, that’s an irrelevant argument.

            No, it’s quite relevant. Your video game could exchange hands a hundred times, each player getting full enjoyment out of it, and still be as good as new.

            This is especially if it’s a digital download, but remember that CDs and floppies were digital, too. So long as they were well-treated (or resurfaced when damaged), the data was still exactly the same, unharmed; gone were the days when you had vinyl records or analog cassette tapes where long-term usage meant a reduced analog quality.

            Try doing that with a book, a hundred readers each finishing it to their satisfaction before selling it to the next. Or a car, each driver getting a hundred thousand kilometres of usage out of it, i.e. the same full enjoyment as if they had bought a new one. Or if you really want some absurdity, we can go back to the wine analogy earlier in this thread — because yes, I’m sure you could drink the wine, and sell the empty bottle to someone, and they would get just as much enjoyment out of that empty bottle as you did out of the full one.

            I’m not saying that used products are inherently immoral. I’m saying that when your used product is exactly the same as your new product but lower cost, you reduce or eliminate the incentive to buy new. And if enough people buy used instead of new — because the incentive is there, and because someone has made a booming centralised business out of it — you can start to have a real problem on your hands.

            Thus, it’s one of those systems that only works so long as few enough people do it (like piracy, adblocking, etc.). See also: tragedy of the commons.

          • ohminus says:

            Wisq,

            thanks for making it clear you did not read beyond my initial statement.

            Try familiarizing yourself with the concept of product life cycles before embarking on big word lectures. Especially when your big words have nothing to do with the issue at hand because markets simply don’t work the way you think they do.

            The very fact that prices degrade over time proves you wrong: They degrade all without any physical degradation. Why do they do that? Because the games are attributed a lower value when they are older. Why are they attributed a lower value? Because people do NOT have the same experience playing a game months or years after release than on day 1. What used to be innovation has become a commodity, what used to be breaking new ground has become the new standard that no one is willing to pay extra for.

            Your claim that everyone has the same experience is contradicted not only by marketing theory but by pure empirics.

        • odgaf says:

          but what is the point of the defence of pre owned is a lost sale, you cant base morality on presumption
          how is this different from selling my dvd or music collection, or even my console and pc games collection
          i havnt seen these industries go broke nor have i seen consumers mass sell its entertainment collection
          infact its a complete non issue

          why is the presumption that we will all sell our online games collections, thus causing poverty to poor gaming devs, most people like to hang onto happy times and would be loath to sell, its the greediest arguement ive ever heard and it just tramples over peoples basic human rights, if these greedy people get their way we will one day wake up
          in a world where you own nothing and everything is licensed,

          and a lot of people selling games they dont want will want the money to buy more games……

        • John Walker says:

          What a time it is where sharing is considered the “amoral” choice.

          • princec says:

            John, the reason why games are just so astonishingly cheap on Steam (and, because everyone else had to follow-or-die, everywhere else, too) is because there is no second-hand market for Steam games, so the people who make the games, like me, are assured that everyone who wants to enjoy the game gives me a little money.

            I simply cannot fathom how short-sighted you appear to be when it comes to the economics of supply and demand with respect to digital content.

            If second-hand sales of digital goods were allowed we are effectively allowing someone else to publish the game again for sale. If we perform reductio ad absurdum on the situation we can conceive of a logical regression to the point where we can only sell one copy of a title on Steam, and this copy is then resold on 10,000 times. I make $10, 10,000 people enjoy the game. What’s in it for me? Think about it.

          • AngelTear says:

            @princec

            I think you’re confusing “sharing” with “abusing the system”.
            There are free books at the library (The concept of public library is possibly the most wonderful one we have as a society, sometimes I wonder how they survived until now), and yet Amazon still sells books. Sharing/Copying MP3s is incredibly easy, but music is still being sold.

            The point is, sharing is beautiful, what’s less beautiful is abusing the sharing system to not give credit (or, in this case, money) where it’s due and rewarding the creator of a piece of content you enjoyed. If people were a bit more responsible, I bet you wouldn’t have a problem with it.(I pirate most of my music, because I can’t afford buying it all, but then I go to concerts and donate money/buy merchandise of my favourite bands, whenever I can, to support them, the more so if they’re small)

            How many beautiful things have we renounced, in order to make them hard/impossible to abuse?

          • Sheng-ji says:

            Er…. what? If you only sell one copy of a game this meant that only one person wanted to and had the means to buy your game at the release price point. Now either you have massively overpriced your game or you have targeted a market that is not large enough to cover your expenses. Your fault, not your customers.

            The reason you would sell more than one copy is because hopefully you have made a game which lots of people want to play. They will buy it rather than waiting for a copy to become available second hand because people don’t like to wait. The people who will wait are the very same people who would have waited for a sale anyway, except in this case, there are:

            In the consumers interest: Games available at the right price all year round

            In the devs interest: There are, at any one time only a limited number of games available at the lower price, unlike a steam sale when potentially nearly every copy of your game you ever sell could be sold at sale price. Also every second hand sale is a chance to sell more than one expansion pack or DLC to the same copy of the game, a clear advantage for the dev.

            I suspect the overall effect would not be very different to the current situation, except giving your customers the respect and ownership of their product that you seem to have forgotten about.

          • Max.I.Candy says:

            @princec

            You’re ignoring the fact that if we were allowed to resell steam games we would also be buying a LOT more at FULL PRICE.

            Currently, I have almost 500 games in my Steam library. 90% of them have been bought while on sale. If I could resell my Steam games, I would have bought a SHIT LOAD more at full price. Just like I do with console games.

          • The Random One says:

            On this universe, princec releases a game for $15. I’m interested in it, and am considering paying full price, but not entirely sold. My friend is also interested but is sure it won’t be worth $15, so she’s waiting for a sale. I ultimately decide to wait as well. Three months later we both buy it 50% off. We now both have the game and pricec got $15 gross.

            On parallel universe Kapa-512, princec releases a game for $15 on magnotromic spektratape, which can be resold freely. I’m interested in it, and am considering paying full price, but not entirely sold. My friend is also interested but is sure it won’t be worth $15. Since I know I can recoup part of the cost by selling it to my friend, I buy it full price. I complete it in a week because of how good I am at videogames and sell it to my friend for $7. We now both have the game and princec got $15 gross, months earlier. Who loses out?

          • rock_paper_shotgun says:

            @princec

            There is no reason that steam couldn’t remimburse the original game creator for a 3rd party sale. It is all digital after all. I would have no problem with that. There are so many games I would love to sell just to get them off my list. Perhaps one of yours something I would like to get rid of. If I sold it and you got a slice of that, what is the issue?

          • Max.I.Candy says:

            @ The Random One
            50% reduction within a week of release is too much. In the past, when I’ve resold my week old 360 games to CEX, they usually give me £35 if the game was £40 (I’m not saying Steam have to do this).

            I dont know if I’m missing anything, but what would be the harm of Steam doing this, if they also gave the publisher/developer a slice?

            As I said before, I certainly would have bought a hell of a lot more full price games on Steam, if I had the option to later re-sell. I would imagine full price sales would double! (or maybe I’m just being naive)…and if anything, the people that would normally wait for the game to go down to £7.99, would instead be buying them earlier when they start appearing as second hand?

          • tetracycloide says:

            @rock_paper_shotgun

            That’s what’s so baffling about the track being taken by Steam and publishers on resale of digital goods to me. Right now they insist on taking everything on principle and defending that to the death in the courts. With only a slight tweak they could enable resale on digital platforms and merely take almost everything while still giving people the dazzling veneer of control and value. Gamestop filled that roll in the physical space and the top down control of digital platforms puts them in an excellent position to fill it in the digital area only with the actual publishers taking the insane margins on reselling used games. Sure, by all rights consumers are owed the ability to freely exchange their own property in whatever way they choose and without the constraints of being forced to go through a middle man but it’s much easier to make that argument when no mechanism exists for exchange at all, even a very controlled one. I just can’t shake the feeling that they could pretty easily head off these arguments for another decade or two with only slight tweaks to the existing system that would more than likely improve their bottom line at the same time.

        • Harvey says:

          I am tired of hearing the same old arguments on this. Hell, comparing dgital resale to a used car is this subject’s Godwin.

          But perhaps in ignoring the arguments I’ve missed this new one.

          “morality”.

          And frankly it has no bearing in this discussion.

          Both parties involved are interested in money. One party or the other benefits depending on which choice the respective parties make.

          Do I lend my friend a game, depriving myself of my copy (and arguably a developers potential sale)?

          Do I tell my friend to stuff it and buy his own, benefitting the developer and maybe depriving myself of a beer bought by my former friend?
          Where does morality belong in this scenario? I postulate that it belogs nowhere. If you want to add an idea so rife with meaning to a debate about a simple economic transaction then you are adding dangerous amounts of responsibility to all parties involved.

          Should I only buy games from moral developers? If so, what constitutes morality? Do I purchase only from small developers? What about the morality rating among corporations? Is Activision MORE moral than Team Meat? Whst about the morality behind supporting the most people per purchase? Surely even EA’s employees have children with hungry mouths.

          Messy huh? THAT’S why morality has no place here. If both parties act in their own best interests, then captalism has been achieved. Developers and players alike.

          Morality. SHEESH.

          • AngelTear says:

            1) Get your words right. “To postulate” means to present a concept as a starting point of a discussion, without demonstrating it or arguing for it.

            2) Morality and Ethics have an important part in deciding how to handle money. Depending on how much of a responsible consumer you want to be, you should purchase from certain retailers and not others, certain products and not others. What you make of your morality is your own business, but if you want to be consistent with that in practice, you’ll want to make your choices. Ever heard of boycotts?

            Example: I’m strongly against slavery; therefore, I will not buy products manufactured by slaves. More “popular” example: EA engages in unethical practices that I strongly dislike and disapprove of; therefore, I will not buy EA games.

            I’m sorry if you don’t like to feel responsible, but you *are* responsible for everything you do, including how you spend your money; and in the age of the internet, you can only rightfully reply “I didn’t know” so much.

          • Harvey says:

            Postulate:
            v. To make claim for; demand.
            v. To assume or assert the truth, reality, or necessity of, especially as a basis of an argument.
            v. To assume as a premise or axiom; take for granted.

            If you’re planning to argue definitions of words with me, or wish to reply again with more wasting of my time, just don’t.

            Really.

            There. internet dick measuring out of the way. Lets play nice.

            The reason you don’t bring morality into this debate is because the nature of digital distribution and piracy of said content is itself too nebulous a concept to call moral or amoral. Show me a company that prides itself on putting morals above profits.

            Then tell me how that company assures that all the employees within are worthy of the same high standards it purports to uphold. Do they align with mine/yours/ours?

            Even if such a search were possible, it would be impractical, and pointless.

            Rather than a search of some exception to prove me wrong arguing that point, perhaps we can discuss how the “morality of the purchase” supersedes other concerns, such as the nature of copyright as it stands, or perhaps whether giving companies absolute authority over their products after they’re sold does/doesn’t hurt the consumer.

            Then we can talk about the nature of copyright law with regard to political reform, with emphasis on the imbalance of political clout of the consumer vs. the copyright holder in the writing of these laws.

            Then we can move on to the needs of the consumer outside of the realm of purchase, and how sharing something with someone else (within a legal framework or otherwise) will many times override those other lofty concerns.

            If a friend wants to play a game and can’t afford it, is it morally wrong to pirate a copy for them, or share your steam password with them?

            If your opinion is that it is morally wrong, what is an appropriate punishment?

            I look forward to all these posts from you, we can probably have a good debate about these, because It’s something we’re both interested in and have strong feelings about.

            When you do, please refrain from insulting my intelligence, or implying that “i don’t want responsibility”
            In direct response to point 2 of your post, I’m afraid I can’t agree. The companies business practices can’t be and are not the consumer’s primary problem. Nor is the prosperity of the company.

            The slave labor example you provided doesn’t exist in software development as far as I’m aware, so without more information we can safely ignore it.

            How the company treats the product it delivers and the customer who purchases it IS the only thing neccesary. And pie-in-the-sky ideals aside, it is the nature of the business.

          • AngelTear says:

            I don’t like the aggressive tone this discussion is taking so I’ll try to make it a bit lighter.

            I usually try to check my facts before posting. From http://en.wikipedia.org/wiki/Postulate “An axiom, or postulate, is a premise or starting point of reasoning. A self-evident principle or one that is accepted as true without proof as the basis for argument; a postulate.” If your usage was also correct, I apologize, but it sounded very unusual to me and I never encountered the word used that way, in order to conclude the argument instead of starting it.

            On to the main topic: I find it really hard to agree with your claim that morality has no place in this discussion when you yourself bring up so many questions that are clearly moral; in particular I don’t understand how you can say that morality has no place in this discussion simply because the moral status of some of the themes being discussed is nebulous; I thought that was why we were having that discussion in the first place, because it’s a nebulous matter.

            In your first post you say that “Both parties involved are interested in money.”, and, correct me if I’m wrong, but you seem to imply that they’re interested in nothing else but money. Now, my claim is that money is not all there is to it, because the decision to go with one or the other of the two options you presented is affected by many considerations, some of which are moral. E.g.: It’s wrong to lend this game to my friend and let him play it, with the dev not being paid for use of his/her product. I’m not saying this is what I believe, but it’s a valid argument. My claim, in short, is that many of the factors that affect one’s decision of how to destine one’s money are moral.

            I don’t even know why I’m arguing this, though, when you say so yourself, in your second comment too.

            What I also take fault with, in both your comments, is that you see complexity, I don’t know how to say, almost as an insurmountable problem. If something is not clearly good or bad, it’s outside the realm of morality, too “nebulous”. In your second comment, if a company is not a champion of ethics through and through, from its business plan down to the guy who cleans their bathroom, the ethics of a company are not worth taking into account. In reality there’s a lot of “better” and “worse”, a lot of “different” and “we’re trying” and “on this point we had to compromise because…”; and even though there’s no clear cut “good” or “wrong”, those difference can and must be made, because they matter.

            As for your questions, the answer is simply I don’t know and my reply wasn’t about those things either. I have proposed a couple of arguments (Because I know at least *some* points about what I’d like it to be) in some other posts in this comment section, on both sides of the argument, and I ultimately haven’t arrived at any position.

            “The companies business practices can’t be and are not the consumer’s primary problem. Nor is the prosperity of the company. [...] How the company treats the product it delivers and the customer who purchases it IS the only thing necessary. And pie-in-the-sky ideals aside, it is the nature of the business.”
            Well, here I’ll just agree to disagree, because you seem to understand what I mean. It’s true that *most* people will only look at price and customer service when choosing to buy something. But not everyone is like that. I base a lot of my purchasing decisions (or lack thereof) on my “pie-in-the-sky” ideals, and sure I could do better but it’s still better than nothing.

          • Harvey says:

            ugh. I’m sorry, I’ll lighten up too. The whole tone of my original post was colored by the comment i was replying to.

            DarkDemon said: Whilst it may be your legal right [to share games], it may not be a moral one.”

            That statement seems ludicrous to me, because the concept of morality IS an insurmountable obstacle. The morality of whether or not to share a game Is easier to weigh in on if we are just talking in the abstract, as an academic question. If there were just 3 parties, it’s easy to see both points of view.

            Bringing up all those examples in the second post was my attempt to show just how impossible the idea is when one takes in more variables, which due to my own limitations may well be the only point I managed make clear.

            In doing that it appears that I’m arguing against having a strong moral stance, when thats not at all what I’m arguing for. For my part, I refuse to buy games from certain game devs because of what I’ve heard, and I hold grudges so there are a great many games I won’t get to play.

            As I make this choice, I recognize that I may be wrong.

            But that’s my moral choice. A choice I make given all the tools available to me.

            And If someone who know what you and I know about the business practices of EA still chooses to buy a game from them, they are not morally wrong, they have a different set of circumstances that sets their values differently than ours.

            And if EA decides to add micrtransactions to EVERY game ever but is able to hire more employees, was that morally definable?

            Mustn’t we then know everthing about the business before we can pass judgement? My rather hyperbolic statement about the employees of EA was meant to illustrate this.

            No matter how much you read, you’re never going to get the full story, that’s impossible.

            Without the impossible, we shouldn’t attempt the impossible; that is, to attempt to use morality as a guide in our transaction.

            So, my radical stance is:

            Is the morality of “purchase vs sharing” something that can be defined? I say it can’t

            Furthermore, if it cannot be defined, then it can’t be used as a point of debate. How could it?

            Therefore, because morality can not be defined, the consumer need not consider it as highly as they consider other factors, such as whether the purchase (or sharing) benefits them.

            Whoof, I’m tired, I’ll stop here. Lokk forward to your reply.

        • DodgyG33za says:

          Car analogy: If I let my daughter borrow my car is that a lost sale to the car industry?

          The problem with the software industry (and other digital media) is that they want to both ways. They want to treat it like product that needs to be bought when it suits them, and like a licence when it suits them. They lost the piracy debate in my eyes with this stance, not that I pirate games due to the risk of viruses.

        • sophof says:

          Not only is the morality argument completely subjective, it also doesn’t make any sense. No one calls buying a second hand car amoral and would see giving it away as an act of kindness. No one cares when you lend your car to a friend.
          Unless you can make a very convincing case why all of this is different for a digital good, it would be better to leave your concept of morality out of the argument. All of this is about (the fear of) piracy and old fashioned greed (on both sides), none of it is about fairness. That doesn’t mean any side is more right than the other, just that you can’t claim moral high-ground so easily.

        • Sparkasaurusmex says:

          You prudes have some crazy fuckin morals

      • dorn says:

        What’s legal hardly matters here. The reality is that entertainment is different now. For any other good if you sell it you lose access to it. That’s why “ownership” isn’t a problem. For many types of media that access value is lost the minute you watch/read/play it. Thus if you sell it you lose nothing of worth.

        So is it ok to just share it? Or resell it? Who knows. Arguing that it’s the same though, is simply god damn silly.

        • Emeraude says:

          You lose nothing of worth to *yourself*. But the very fact that you can sell it shows that it still has market value.

          As for some the “access value is lost the minute you watch/read/play it.” bit: games specifically are the entertainment product least susceptible to that issue, because a well designed, deep enough game has re-playability; playing the game does not exhaust it. You can *beat* the game as we used to say, but it takes a lot more investment and time than *finishing it* as we do nowadays.

          The current focus of publishers on “experience game” focusing on linear narrative to the detriment of the gameplay is – as all of their current woes, really – an issue of their own doing. They chose to focus on derivative “experience” games to the detriment of others, and to cultivate the casualcore* audience that would buy them – the most likely games to be resold and the most most likely audience to resell them.
          Then they chose to constantly diminish the value of their games by making them impossible to resell, by cutting to bits and pieces to sell in parts, by imposing dedicated servers that would make impossible the long term market survival of their game.

          But even after all that if other media, with their higher potential for exhaustion of interest, can deal with second hand sales, so can the video game industry.
          Here’s a possibility: make retail versions without DRM, but no access to the modern service platforms.
          Allow for resale of digital games, but a game resold *doesn’t* come with the right of access to the service platform.

          *:For lack of a better term

        • tetracycloide says:

          Because no one ever put any value on the right to rewatch/replay/relisten to something right? The reality is every sale of anything is based on differences in the perceived value.

      • toxic avenger says:

        Do you ever stop to think what the repercussions, if any, would be for the industry as a whole? Are these net desirable or not? I’m all for advocating on being able to resell games, but I’d like to have an honest discussion about it first that involves all party members with transparency. Journalists are not doing the legwork necessary for us readers, though I guess today you can argue that journalists or bloggers have NO responsibility other than the bottom line.

        • tetracycloide says:

          If an industry can’t exist without striping individuals of their rights in what sense dues it deserve to?

          • Llewyn says:

            What does ‘deserve’ have to do with it? More importantly, do we want it to? Do we want specific rights over our games so much that we’d sacrifice the industry that creates them to achieve those rights*?

            *I’m assuming your scenario here, not arguing for it.

          • The Random One says:

            ‘Deserve’ means: If an industry cannot exist and prosper without infringing the rights of those that support it, then perhaps it is best for all if the industry ceases to exist.

          • Emeraude says:

            @Llewyn
            What does ‘deserve’ have to do with it?

            Well, quite simply, if we have to allow the law to be reshaped in favor of companies, to the detriment of other citizens, then they’re going to have to present an argument as to why it is necessary to do so. Why they deserve the change to be done.

            More importantly, do we want it to?
            Do we want specific rights over our games so much that we’d sacrifice the industry that creates them to achieve those rights*?

            As much as I love video games, there’s no inherent value to them that demands that laws of commerce need to be redefined on a industry basis just to allow the survival of the industry that spawns them.
            If video games as an art-form are incapable of being economically viable without granting publisher extraordinary rights and depriving customers of basic rights just so they can survive, then yes, the industry needs to die.

            You know what though ? I call bullshit on that supposition. They totally can survive it, they just don’t want to have to endure the reforms that it would make necessary.

    • Gap Gen says:

      I mean, in theory you can swap Steam accounts, but granted it’s not 100% practical. I suspect for reselling developers would lose out quite heavily on any sales post-release as it’d be cheaper to buy a second-hand copy from someone on the internet. It’s not like buying a used car, since the bits and bytes are identical to buying new (even second-hand games before the internet had scuffed boxes or someone else’s saves on the disk). Then again, given that devs are selling their games nominally for $1 on Humble, I don’t know if there’d be that much in it for some games to resell them. I suppose you could imagine a lending system for Steam, although that would probably develop into a grey market for game swaps.

      • mjrmua says:

        “in theory you can swap Steam accounts” I suspect you will find that violates the EULA.

        • Gap Gen says:

          Probably, yeah. By *in theory* I mean “you could do it until you got found out”. Also it’d be a pain to maintain accounts for every game you bought.

          • bills6693 says:

            Are you really going to get found out through? Very unlikely. How would steam find out you were sharing accounts?

            I used to share a steam account with a family member. So it’d be logged on on one side of the country, then on the other side of the country, then back.

            Now with my own account, sometimes on one computer I’ll switch between my account and a family member’s account and back because some games or on each account.

            In both instances, nothing came of it. Especially the latter, where you use multiple accounts on one computer, there is no action that could be taken even if steam noticed this, because you can argue that its because multiple people share the computer and each want access to their steam – thats not against any EULA.

      • tetracycloide says:

        Studies show first party sellers benefit from the existence of a secondary market, even studies of video games.

      • DodgyG33za says:

        “It isn’t like a used car”

        Sure it doesn’t become scuffed and dented. Software does become dated over time though. Why buy/play CIV4 when CIV5 is out?

        Allowing resale might force the blockbuster mentality to change a bit. After all, look at Minecraft, still going strong with new content some time after being finished.

        Giving the original publisher a cut of any resale makes as much sense as any other product manufacturer getting a cut on a resale. None. I would be willing to bet that most resale proceeds would go into buying more games, whereas if you give them to the publisher they will just go to the shareholders.

        Having said this the only games I would be interested in reselling are those that I inadvertently bought on Steam Sales that required Uplay.

        • Deadly Sinner says:

          Age is not comparable in effect to wear and tear. I think most people would rather have a new car from 2010, than a used car from 2012. That used car is simply closer to needing to be maintained than the new one. And the used car will have less time and miles on the warranty, if any at all.

          • ohminus says:

            Please, stuff the argument of wear and tear. It is a pure and utter strawman in this discussion, because it is not the governing factor of game prices. CDs and DVDs are resilient enough not to make wear and tear a significant factor within the time it takes to bring your game to the bargain bin, unless you dramatically maltreat them. The claim that wear and tear was a key distinguishing factor between physical and digital games is pure fantasy. The general deprecation of value to do actual age is a far more relevant factor.

    • Lone Gunman says:

      Sharing is totally an unethical thing to do and we should not encourage children to do it.

      You are literally the reason we are in a recession.

      • Gap Gen says:

        I’m going to teach my children that respecting the exchange of goods and services for legal tender is caring.

        • Lone Gunman says:

          Your totally correct. Children illegally sharing games with their peers is everything that is wrong with the world.

        • tetracycloide says:

          A maxim which argues strongly for the right to resell in addition to sharing.

        • kronpas says:

          Holy shit. This atrocious red backgrounded featured comment made me post my first comment ever on the site. PLEASE CHANGE IT ASAP.

      • AngelTear says:

        So, your definition of what is ethical is “what is good for our version of capitalistic market”?

        • bills6693 says:

          Surely ethics, morals and values are subjective to the culture and society one lives within?

          So if it is good for society, it is moral. And our society focuses on making money for your work. Therefore it is moral to facilitate or ensure you are paying others for the work they are doing for you. You could say that within our society, people may not do the work if they will not receive appropriate/fair ‘compensation’ for their work. And that one must receive money for their work to continue to be able to do that line of work.

          Even ignoring the debated ‘if you don’t get paid you won’t do work’ argument, if one creates a game and does not receive money from those playing their game, even if one wishes to keep making games, they cannot financially support themselves in continuing to do their work and society will not support them in this meaning they must work in another line and not be able to continue to make games. Thus for the continued production of games, people need to be paid a fair amount for their work.

          Therefore it is moral to pay the creator for the work rather than far fewer copies being bought and swapped around between people. It allows, within our society, people to continue making games.

          So yes, its more moral to pay the dev than to share a game between people because it allows society to keep producing games to play and if it did come to the stage where you can share games and there are less sales, society would not support so many games being produced.

          • Lone Gunman says:

            No one has ever made money at the expense of someone else. The moral view that it is ok to do something providing you can get paid for it does not benefit everyone in a society.

          • tetracycloide says:

            On the contrary, when the income from an additional marginal sale has no appreciable effect on the wage paid the creator(s) it is far more moral to provide access to culture at a rate any individual can afford including for free then to deny them access based on done misguided notion that doing so helps the creator(s).

      • Bluerps says:

        Hah! That kind of reminds of a webcomic I read (Curvy – unfortunately it is too NSFW to link), in which a teenage girl travels to all kinds of bizarre worlds.

        One of the worlds is “Corporate World” and there it is actually illegal to do anything for free. For example, if you make smalltalk with someone you have to charge them for that, or the police will come and arrest you.

        • Loyal_Viggo says:

          There’s actually a place like that on earth, called the ‘United States of America’, where anyone can sue anyone, for anything, and they’ll probably win.

        • Lone Gunman says:

          Or like in Philip K dick stories that tend to feature talking doors that are sarcastic and refuse to open unless you pay them ^^

      • BarneyL says:

        You wouldn’t share a toothbrush!
        You wouldn’t share a used syringe!
        You wouldn’t share a your child with Gary Glitter!

        SHARING!
        IS!
        THEFT!!!!

    • secuda says:

      Not really, we have that “problem” right now and its called Piracy, people still buy games to get real thing and then probably sell if the game did not enjoy them or lived up the expectation.. would reduce my list of steam games if i could sell those i newer bother to play.

  2. subedii says:

    Being an ardent GOG.com buyer, this makes me sad. However, I can also see where the ability to transfer completely digital copies of items that do not degrade could prove problematic.

    In the context of this ruling my (completely laymans) understanding is that you wouldn’t have a legal ‘right’ to resell GOG games either, even though they’re one step simpler to do so as they don’t have any DRM to shed.

    I guess, I’m not too concerned about this ruling in particular (or maybe I am?). I’m more concerned about rulings with regards to DRM and a customer’s right to a product. Whether a company is allowed to enforce control over it even past the point of that company’s existence, even when the product itself does not specifically require it except as an enforcement mechanism. Does anyone know whether this ruling affects such things?

    And relatedly, as far as I’m aware, circumvention of DRM is still “illegal” in the UK and EU, is that right?

    • Horg says:

      Personally, I don’t buy the digital property does not degrade argument. Firstly, games arguably do degrade over time. Take an original copy of any game from the 90s and try making it work out of the box on Windows 7 or later. Although some will run without a hitch, most will not. That is a relative degradation of the code for the user as technology moves onwards. Other software tends to suffer similar fate, as new versions are released and official support is dropped. Eventually compatibility with other users will become a problem, even if it will work fine. Secondly, a lot of physical media does not degrade to a significant degree. My CD collection, for example, is still in mint condition minus a few tears in the booklets and scratches on the case. As I own legal copies of the music, I can legally duplicate the content as many times as I want for personal use. I do not expect to replace more than a handful of CDs in my lifetime, making its degradation factor negligible. Yet I am allowed to resell them at any time (not that I ever would, music is like, your children man).

      • DrManhatten says:

        Well sorry to bring you the bad news. But optical discs actually do degrade physically especially if they used cheap or very thin silver/gold film. Optical discs have an average life-time of 20-25 years before the layer starts bridling away which makes them unreadable because there is no difference between the hills and valley pits which encode zero and ones. They still do a lot better than most magnetic storage.

        • Emeraude says:

          Disk degradation is the reason why French law allows to make archiving copies of media you buy.

          What I’ll never get is how/why then, given we pay a specific tax for that right, publisher then have the right to put DRM solutions that prevent us from doing that very same legal copy.

          Dura lex.

          At least it’s kinda funny when you call a publisher to demand it provides the copy you are entitled to, as it is now its duty to make it available to you as it chose the option of preventing you making it.

        • ohminus says:

          Unfortunately, that’s irrelevant, since 20-25 years are plenty of time to devaluate the contents of the CD anyway. So degradation of optical disks is not a key influencer of the value.

  3. bill says:

    Greenman Gaming essentially do this, by allowing you to trade in your games after you play them. (though it doesn’t apply to all games). I thought it seemed like an innovative approach, but a lot of people seemed to treat it as “you aren’t really buying the game, just renting”.

    The problem being, of course, that to allow that kind of thing you need to lock the games into the system with some kind of DRM.

    Frankly, considering the very generous terms that steam now allows people to share games with friends under, and the potential for revenue, and the online “marketplace (which I don’t understand at all), it’s kid of surprising that valve hasn’t implemented some kind of trade-in system.

    Publishers might not like it, but I think it might actually generate more revenue in the long term. And I assume the trade in value would be well below the buying price.
    It’d be a pain to implement and prevent abuse though.

    PS/ The distinction that games aren’t software because they contain art/music seems a very spurious one, given that a lot of software contains graphical/sound assets.

    • AngelTear says:

      As far as I know, GMG only takes games back if you’ve bought a physical copy of it, so it is practically the same as what GameStop does, only by mail instead of going to a shop in person. Still it’s not quite the same as a digital copy.

      To bring an anecdote to the table, I bought a used copy of Resistance for PS3 for my father at gamestop, and I couldn’t play the multiplayer because, while the single player only requires the disc, the multiplayer requires a unique code to be activated and tied to your psn account, and the previous owner had already activated it. It also means that if the owner of the account wanted to make a new account and play Resistance online there, he’d have to buy a new copy.

      I think most of the problem here is, as you say, that “it’s hard to prevent abuse of the system”, and the publishers are trying to fight against consumer rights while they still have time and there are no long-time habits in place against them. Imagine a book publisher campaigning against public libraries, because every book you borrow is a lost sale to them, wouldn’t that be ridiculous?

      The reasons for abusing a system vary, though, and it’s been discussed at length here and elsewhere. Some are pirates because they are genuinely just trying not to pay the price, others simply because they cannot afford it (not every pirated copy is a lost sale) or because they truly believe that art and knowledge and ideas should be free (The Pirate Bay is built on that philosophical foundation, although I expect less than 1% of its users actually share those beliefs).

      At the same time, there is a major difference between material and digital. Ideally, buying something second-hand means buying something that is not as perfect as when it was new, because it’s been used. This is true, to different extents, about pretty much everything that is *material* (clothes, books, furniture, musical instruments, toys etc). It’s still usable, but it’s not as good as a new one. With digital products, though, there’s no incentive to buy new over used, precisely because it isn’t degradable, it’s always “new”.

      I don’t know, I’m rambling on because it’s a complicated issue, and I can see both sides of the dispute; my opinion would be on the side of consumers’ rights, but at the same time I don’t think people are responsible consumers enough to not abuse those rights and to understand that creators deserve money for their work.

      • Gnoupi says:

        GMG takes back digital copies of games which you download only from them (excluding Steamworks games, typically, or the ones activating on Origin/UPlay, typically).

        • AngelTear says:

          Oh wow, I didn’t know, that’s really nice of them then. I imagine the number of games must be quite small, though…

          • Klydefrog says:

            Yeah I’ve noticed very few games that allow it, although I did get a Men of War game for free on there like 2 years ago and recently traded it in for about 50p credit. That was pretty good.

    • HadToLogin says:

      It’s not like you own any Steamworks games – even those bought in boxes. One hacker with enough skills to get into Valve’s account database and hack all the passwords and like-95% of whole PC-gaming-world practically dies.

      • bills6693 says:

        People will be very upset and angry with valve but it won’t kill PC gaming or even valve. People will be unhappy but valve will fix it somehow, and all those PC gamers won’t go ‘ok well screw this I’m buying an PS4′.

        Sony got hacked and look how its doing now :P

        Some people may stop using steam after an even like that. But since they hold a monopoly on many games and are an easy vendor for many more, I’d imagine even a major security breach like that would not do much harm to the platform beyond a short term loss of confidence. I don’t think that many customers would actually leave.

        • HadToLogin says:

          I meant “dead” as “nobody can’t play anything”. Death of PSN+ wasn’t a big problem because you only needed to put DVD to play.
          But without being able to log into steam, you still have 50% chance offline mode will show you third finger and your whole library will be worthless.

          • TechnicalBen says:

            Probably the same risk as you loosing electric or your bank account. It’s very real, but it’s probably balanced by the importance (games being less than your bank account) of the system.

            Oh, it can happen, see PSN etc. But to loose the backups in addition, that’s quite unheard of. I think Steam (or Google, I forget which) actually survived a major fire in one of it’s 2 or 3 server houses a few years back, and “fell over” silently and without a big problem.

            You could loose everything. But this is true for Sky loosing an entire channel or service. The banks loosing all account info. The electric company loosing supply to a plant or more. Or something less problematic, your magazine/newspaper subscription getting lost…

          • Emeraude says:

            The question being, as low as the risk may be, why incur it in the first place when there is no reason that should make it mandatory and or even necessary for the end user ?

          • bills6693 says:

            @above comment

            Its not necessary but it seems that most people deem the added features and benefits to outweigh the costs. Even where a game is available through other platforms, including DRM free ones like GoG or direct from devs, I believe (without solid figures) that the majority of sales comes from steam – meaning customers are choosing to shun a DRM free version of the game in favour of steam.

            Most people are willing to take the risk of steam dying in order to buy their games in ridiculous sales on steam, get the community features of all varieties, access the game catalogue through one easy portal including updates and downloads, multiplayer support etc.

  4. staberas says:

    “And that video games may not actually count as “computer software” because of their “audiovisual components” ”
    So the next tactic is to call video games ART so that we can have the authority to resell them :P

    • P.Funk says:

      So the court believes that Sony Vegas and Goldwave aren’t computer software?

    • Emeraude says:

      The ongoing tactic is to try and benefit from all available forms of intellectual properties while giving as little possible back of their constitutional mandate., switching type every time according to what gives the best protection.

      There’s been a strong lobbying in the EU to try and have software benefit from both patent rights AND authorial rights for example.

    • odgaf says:

      ever seen a tos/license not refer to itself as software/….. nope

  5. BarryK says:

    There’s another case going through a higher European court on which copyright law applies to games, but I doubt the VZBV were expecting a quick win on this. I’d imagine they’ll try appealing it up the chain to get a definitive ECJ ruling instead of a nondescript dismissal from a Berlin regional court

    • Lanfranc says:

      Presumably that’s also why the Berlin court ruled against them: With the state of the law in such a flux, it’s really more appropriate for a higher court to deal with it (and get it referred to the ECJ again).

  6. LevelHeaded says:

    “The ability to buy a game and then either keep it in your account, or gift it to another, demonstrates that the infrastructure is already in place to allow the transfer of ownership of Steam games.”

    That’s just not true. The Steam store and inventory system demonstrates the ability to gift a new copy of a title to another account. There is no evidence that there is infrastructure in place to allow the transfer of games already registered to an account.

    • AngelTear says:

      How is that not true? The only tweak they’d have to make is that, once you pass on your copy of the game, it is not tied to your account anymore. (and it must be uninstalled of course)
      The market already sells lots of different things, there’s literally no additional work to do to make it so you can also buy and sell copies of games.

      The infrastructure is there. Some practical problems would have to be thought about (like the relationship of the price of a used copy and that of a sale of a “new copy”), but if they wanted to, they could start tomorrow.

    • SpinalJack says:

      Try reversing a charge on a credit card and see if your game is still in your account afterwards.
      It’s as simple as deleting a record in a database.

      Even if the serial key can’t be reused because of some publisher back end steam can just as easily remove your copy from your account (and serial key) and generate a new one for you to trade to a friend.

      • Wisq says:

        Try reversing a charge on your credit card and see if you even still have a working Steam account afterwards.

        Reversing the charges on credit cards is not something to be done lightly. It’s meant to be the final option to deal with a fraudulent or unscrupulous merchant, after all attempts to negotiate with the merchant have failed. It’s one small step short of legal action, and should be considered the “tactical nuclear” option of consumer rights.

        Essentially, if you reverse a charge, you’re saying “this merchant is fraudulent and I never want to deal with them again”. And they will respond in kind — not by disabling the game you just bought, but by disabling your entire account. It costs them money (beyond just the lost sale), it damages their merchant rating, and they have no interest in dealing with customers who think it’s an appropriate measure.

    • FartFarticus says:

      Except they’ve already demonstrated they have the infrastructure in place to

      -share licenses
      -transfer unregistered licenses both in game and out of game
      -manually remove licenses from a users library
      -automatically remove them
      -have them in your library for a short period (free weekend)

      • Baines says:

        Valve has also shown that it takes years for them to implement basic changes or bug fixes.

        And that their idea of consumer support can make EA look good, while their idea of consumer rights does the same for Microsoft.

    • Gap Gen says:

      Of course, switching a game key in a database from one user to another is in theory a very trivial problem – just sending this comment takes more bandwidth than that. I suppose you could have a mechanism for lending where a license is permanently linked to one account but can be loaned out to another one for a time, which might discourage industrial-scale reselling as single licenses can’t change hands multiple times. Or you could buy Steam dongles and permanently link a game with one of them, so that you’d have to physically hand someone the thing to trade it in. Sounds pointless, but just spitballing here.

  7. FriendGaru says:

    I can’t help but feel that forcing Steam and others to allowed unfettered reselling would ultimately have a very negative effect on users. We’re enjoying a golden age of PC game pricing at the moment, where triple A titles can be had for only a few bucks mere months after release. Publishers can offer these prices because they’re not competing with resale copies. They’re just as happy selling 10 copies at $5 as they would be selling 1 copy that ends up in the hands of 10 people for $50. More problematic, though, is that we would almost assuredly see a much greater move toward games as a service business models. Publishers would be able to get around the restrictions by making more and more games account based and requiring a constant connection to their server. And let’s be honest, if that’s the best way for them to control their sales, then that’s what they’ll do. And I don’t think I could honestly blame them, either.

    • Stickman says:

      I believe this is absolutely the case. Used markets provide a relatively unregulated form of price discrimination that incentivizes high initial prices. People who want the game for less that the 60 dollar entry point can either a) play the game for a short period and the sell used (so their price is initial cost – used sell cost), or b) buy used. Both the initial and used cost likely decrease slowly over time (faster for less popular games).

      There’s a reason that early deep-discount sales only became popular with the rise of steam. Without the used market, developers and publishers can offer that same price discrimination directly, with full developer/publisher control and built-in marketing (especially useful for small indies). I imagine this model also allows for a longer, more predictable cash flow to developers, since they’ll be receiving a cut of later reduced-price sales, rather than just receiving the higher up-front new cost and then the bulk of sales happening in the used market. That’s part of the reason why game prices fall so slowly for physical console titles. And also why digital distribution publishers who refuse to do deep-discount sales (like Origin) fare poorly against Steam.

      As someone who enjoys keeping their games and supporting developers (especially indies), I’m a fan of Steam’s sale model, and it definitely wouldn’t work with a used market!

      • tetracycloide says:

        There are a multitude of existing markets where resale and discounts on new goods coexist which would seem to argue quite strongly against your declaration that they couldn’t coexist on steam. In the real world studies repeatedly show consumers don’t treat used and new as close substitutes.

        • Stickman says:

          It’s not that they couldn’t. They could have coexisted in the old brick-and-mortar system too. They didn’t, because deep discount sales hurt your ability to compete with the used market, especially if discount quantity is not limited (as in the case of digital distribution). Also, with a used market, discovery & reseller agents (i.e. Gamestop, Steam if used game trading happens) take a cut of used sales, further diminishing publisher/developer profits from the used market price discrimination system. If steam adds a used game market, expect the deep discount sales and quickly diminishing game costs to be severely reduced, and as FriendGaru said, publishers would like move heavily towards a service model.

          Whether that’s all worth a used market is a matter of your priorities as a consumer. I don’t think its inherently worse, I personally prefer the deep discount model.

          • ohminus says:

            Huh?

            There is nothing miraculous about restricting the number of discounts on digital sales. Especially not with a centralized sales mechanism such as Steam.

        • Deadly Sinner says:

          Which of these studies and real world markets are with purely digital goods, exactly?

    • Shuck says:

      Yep. Also, those hated free-to-play mechanics would suddenly become much more attractive to publishers.

    • Wulfram says:

      Sure, and the glazier is doing customers a favour by breaking peoples windows, because without the extra business he’d have to put the prices up.

      • Deadly Sinner says:

        That’s a terrible analogy. No one is depriving you of your games.

    • ohminus says:

      Publishers can offer these prices because they make the majority of the money within the first couple of weeks. If the game hasn’t broken even by then, there is little reason to expect some miracle happening further down the road. Resales would boost these early sales, as people know they can sell again later, thus recovering part of the money. It would also make customers more risk-friendly, as they can recover some of their “losses” later on. What resales will do is shift profit from later dates to earlier dates – and there is hardly anything bad about receiving most of your money rightaway.

  8. SominiTheCommenter says:

    Steam allowing the reselling of games not yet downloaded, sure, I don’t see the problem.
    But reselling games already downloaded I think it’s scummy. You don’t demand the price of your film ticket back if you quit after 5 minutes. I think the same logic applies.
    If people argue that they can download the game but not play, don’t forget you can run arbitrary code on your machine, so it’s very easy to spoof. Not having a close architecture isn’t just upsides, although I don’t mean I want the PC to be locked down. Just that we need to recognize the limits of this platform. One of the limits is that Valve can’t possibly control everything your PC runs, as it should be!
    Not to mention it meant leeching off Valve’s servers. At least if you torrent a game, you are only using volunteer’s bandwidth.

    • malkav11 says:

      And yet, if you had the game on a disc instead of on Steam, it wouldn’t matter how much of the game you’d played, you would still be able to sell that disc on. And your film ticket analogy doesn’t hold because we aren’t (or shouldn’t be) buying access to experience a one time event, but rather purchasing a good. It’s far more analogous to buying that film on DVD, and funnily enough, we -can- resell those.

      • SominiTheCommenter says:

        A game on Steam is not the same as a DVD.
        If I sell my DVD, I don’t keep the DVD. If I sell my Steam game, I still have it, I’ll have to go out of my way to delete it.
        Not to mention you also pay for the service Steam provides, albeit indirectly.
        I’m not arguing with the morality of the law, I fully support it. It’s just that practically it’s not that simple.

        • HadToLogin says:

          Here’s experiment for you. Create new account and DON’T set any family-share and try to play any not-F2P game your other account bought, preferably something you bought in retail.

          Will you:
          a) be able to play it
          b) see “you don’t own, want to purchase?” (it’s especially funny when it’s game you bought in retail, as you can beat yourself senseless with dvd you hold in hand)?

          • MaXimillion says:

            Not all games on Steam are in any way tied to Steam. You can start a lot of them just by running the executable even if Steam is uninstalled.

          • Emeraude says:

            @MaXimillion:

            Yeah, but try installing/running that DVD you bought without registering on Steam. For the vast majority of people buying retail, Steam is Steamworks. And nothing more.

          • HadToLogin says:

            @MaXimillion: Few years back my Internet died and offline was showing me third finger. From around 50 games I had installed that time only one didn’t want Steam – Trapped Dead.

        • malkav11 says:

          The game is not any different whether it comes through Steam or on a disc. The packaging is different but that should not make any fundamental difference to consumers’ rights as regards the game itself. Obviously there is not currently a system for securely transferring rights to a given copy of the game in the digital space, but that is a technical problem, not a legal or ethical problem.

          And when you describe being able to resell games you’ve played as “scummy”, you are absolutely arguing the morality.

    • JonWood says:

      I don’t think its as clear cut as your cinema analogy (I have in the past sat through 20 minutes of a film, realised it was awful, and had the ticket swapped for a better film). Possibly its more akin to going into a restaurant, eating all but a few scraps of your meal, and then demanding a refund because it wasn’t satisfactory – maybe for Steam games there should be some sort of sliding scale, whereby the longer you’ve played a game the less money you can get for trading it in.

      • Horg says:

        ”maybe for Steam games there should be some sort of sliding scale, whereby the longer you’ve played a game the less money you can get for trading it in.”

        Standard market forces would take care of that.

    • John Walker says:

      I had cause to walk out of a film after five minutes, I damn well would try to get my money back!

      Also, presumably you are similarly appalled by jumble sales and charity shops?

      • Gap Gen says:

        One of the fun things is that apparently Oxfam bookshops are undercutting second-hand bookshops. So I suppose that charity shops would be doing good work by undercutting for-profit second-hand stores?

      • SominiTheCommenter says:

        Sales are organized by the publisher, so it’s a different matter.
        As for charity shops, they sell physical products, once you donate to the shop you don’t get to keep it. Games on Steam are just data.

        • Lone Gunman says:

          What happens if everything can be easily replicated with some fancy far future magic 3d printer?

          • melnificent says:

            Cory Doctorow would be out of work

          • SominiTheCommenter says:

            I love melnificent’s answer.
            I would say when the Singularity comes, there will be no reason to charge for games. People will keep making them probably, but in exchange for non-tangible goods, like fame and recognition.

        • Sheng-ji says:

          When I published games on steam , I had no say in sales at all. I signed away the right to set pricing beyond very limited guidance. Maybe things have changed, maybe valve treat every dev as a unique entity but I don’t believe this is the case.

          • TechnicalBen says:

            It would be interesting. AFAIK Steam did not do this in all instances. Was this before Greenlight? If it was, then yes, I think each publisher/dev was specific to the deal on the table at the time (I’m guessing whatever Steam/Valve was expecting to make).

            They very much could be running “our way or the highway”, but I’d want a second/third or more confirmation of it.

  9. sleepisthebrotherofdeath says:

    Surely this would just cause the games market to flatline even further?
    Personally speaking, I got a catalogue of 100s of steam games I don’t play, including ones that came part of a bundle I’ve never looked at. The second steam allows me to sell, I’m going to be trimming most of them.

    • YogSo says:

      “The second steam allows me to sell, I’m going to be trimming most of them.” And of course the unwashed hordes of game-deprived users that are just waiting to get their hands on all those oh-so-interesting games that you yourself haven’t even bothered to install are gonna throw money at you so hard that you’ll probably get blind…

      Or maybe not.

      Having the option to sell doesn’t equate being able to find a buyer.

      • odgaf says:

        and a lot of people selling games they dont want will want the money to buy more games……

  10. lautalocos says:

    now, i would like to sell and buy games from other people, but hear me out.
    what if people would just sell the game at 9$ instead of the orginal 10$?
    it´s very little money, but the average consumer prefers to buy the cheaper copy, and because it´s digital, they are getting the exact same as if they bought a new copy

    what i try to say is that steam is a business, and the objective of it is to get money. what happens if they let 50% percent of their costumers buy a game, and then those sell the game cheaper to the other 50% once they finished it? they lose half of their business.
    of course, in practice most people will still buy the original digital copy, but a substantial amount of people will buy the used copy, of which steam gets only a little part of the profit

    • YogSo says:

      What about those people that wouldn’t have bothered buying the game at the full price and would have waited to buy it during the first 50% sale? People that ACTUALLY exists, as you can see just by reading comments on any game related thread. What if they decide it’s better to skip the wait and pay the full price on the knowledge that they can get back part of the cost selling the game once they are done with it?

      Things aren’t as clearly black and white as many of you are making it out.

      • lautalocos says:

        as i said, in practice not everyone would buy the used copy, but do you really believe this will help valve economically?

        also, english is my second language, and i don´t know if i just invented economically

        • Sheng-ji says:

          Of course it will help valve, they will levy the same sales fee onto each second hand sale as they would have taken for a full sale, commonly believed to be around 30%. Whether they pass on any money to the dev is the real issue here. Every second hand sale should clearly be marked by the seller as to how much money he wishes to pass to the dev – then if I see two games for sale second hand at $5 each, one passing $1 back to the dev, the other passing $1.50 to the dev, I can make a decision based on how much I like that dev at absolutely no personal cost.

          • SominiTheCommenter says:

            This doesn’t work. If I set the dev cut to 0, I can sell my games cheaper.

          • Sheng-ji says:

            Of course you can, welcome to the wonders of the free market – but we live in a world where people choose to pay more than a single penny for humble bundles and game devs earn a fortune from people choosing to do so. Never underestimate the quantity of people not wanting to be assholes.

        • tetracycloide says:

          You’re just assuming everyone would buy the used copy without any actual evidence to point to that it’s true. Take an equally logical equally wrong assumption as a counterpoint: in practice everyone would only buy during steam sales. I mean people know when (roughly) they are so obviously they’d all wait and sales would never spike after the sale prices expire. Except they don’t and they do.

        • ohminus says:

          It will help the publisher, as it will move some of the profits from when the cows come home to right after publishing – which will give them a load of cash to work on the next game.

    • Mr. Mister says:

      What about doing the opposite: enforcing full price on resells, with an added cut for the dev and Steam (infraestructure usage) on top?

    • SominiTheCommenter says:

      This is Gamestop business model, and frankly it’s quite scummy.

  11. NYMinuteMan says:

    I really hope they’ll let me delete DNF from my account, then.

    • HadToLogin says:

      Just write to support, they don’t have problems deleting entries from library if you don’t want any money back.

  12. Loyal_Viggo says:

    Corporate greed and lobbyists win again.

    EU says we can sell so we should be able too, who gives a fuck what Steam want.

    • Sheng-ji says:

      People who want Valves money?

      • Loyal_Viggo says:

        What?

        At the end of the day this ruling is pro-business, not pro-consumer, and that is the problem.

        You should be able to try and sell anything of yours, whenever you like, as that’s a logical common sense decision.

        The digital retailers, devs, games makers, lobbyists, whothefuckever else should not factor into the equation at all.

        • Sheng-ji says:

          I answered your question and I think you know it’s true. Call it corruption or capitalism working, we all know the truth that big business dictates policy.

          We don’t have to like it, we don’t have to understand it and we can certainly battle against it but denying it is counter productive.

          • Loyal_Viggo says:

            No, be quiet my friend, you are very confused.

            Nothing was denied or needed an answer. It was a rhetorical and I think you know it’s true.

          • Sheng-ji says:

            I’m not your friend, I’m not confused. Maybe if you didn’t want an answer to your question, the thing to do would have been to talk to yourself, rather than ask it in a public forum.

          • bjohndooh says:

            I’m definitely confused. The only question I saw was “What?”

  13. Ladygrace says:

    For me i think being able to resell games is a bad idea in general.
    if anything a refund system should be set up instead like what EA has for there games. If you play so many hours of it you are unable to refund it or have owned the game for a certain amount of time.

    • ohminus says:

      And why, pray tell, would it be a bad idea in general? It allows consumers to recover some of their money, thus tolerating higher initial prices and making them more risk-friendly.

  14. Golden Pantaloons says:

    I think they could at least allow people to trade games within the steam structure in some limited way. Say, any game that is priced at 10 euro or less undiscounted can be given to a steam friend, removing the access to the game from your account. I’ve never been very happy about having my game collection hardlocked into steam, but I’ve always told myself that it didn’t really matter that much, since I rarely spend more than 15-20 euro on a single title.

  15. Maxheadroom says:

    Makes you wonder, what with this, their abject refusal to give refunds even in the face of clear consumer rights violations, and the fact that they’ll Greenlight any old toss nowadays with little or no regard for quality control, Why are Valve still seen as generally nice guys while EA are seen as the devil?

    I know they generated a lot of goodwill by continually releasing TF2 updates (before it became a hat shop) but, to misquote janet Jackson, what have they done for you lately?

    • lautalocos says:

      well, they give me discounts all the time, and they have a good platform for buying games.

      that´s enough for me, i don´t see why they should be more than that

    • Bury The Hammer says:

      For me certainly, it’s about money. I’m a lot more flexible with news like this if I can still get games at ultra cheap prices. If they charged the same as EA AND acted like dicks, I’d be looking for alternatives.

    • BarryK says:

      Steam sales a couple of times a year. That’s about all most people give a damn about. Obviously it’s completely irrelevant that without the price fixing 90% of the year, the prices would be lower anyway. STEAM SALE!

    • derbefrier says:

      when i can get most of the games I want at 75% off and all i have to do is wait for this to happen. Its hard to get mad i cant make 50 cents on a game i bought for 2 dollars 4 years ago. For me its hard to argue the need to resell games when you can get them so cheap so easily. Console games rarely, if ever, go on sale, so a secondhand market makes much more sense. For PC gaming though with all the deeply discounted sales we get its not really an issue.

      someone mentioned its all about greed and i agree on both valves and our parts. Its all about greed.

      • HadToLogin says:

        To tell truth, thanks to PSN+ $50 a year gives you much* more console AAA games then you’ll be able to get on Steam for that money.

        But you need to pay those $50 every year to have access to them…

        Xbox Live gives you games forever, but at-least now they are in smaller numbers (one monthly, maybe 2, opposed to even 4?).

        *Yes, you can’t decide which ones you’d get. That’s where Steam in this example is better.

    • Horg says:

      The more pertinent question to ask would be, ”When did they ever screw you over”? Unlike the way, say, EA handles its business and customers, I have never had a problem with Valve. In the modern gaming industry, that puts them near the top of the moral high ground before you even consider their products.

    • Deadly Sinner says:

      Steam’s refund policy is about the same as pretty much any other retailer’s, digital or physical, at least in the US. If you open the game, you can’t return it and get your money back, you can only switch it with a replacement of the same game. Activating a game in your account is analogous to taking the plastic wrap off of your game. On the other hand, ungifted games in your inventory and preorders can be returned because they have not been “opened.” It’s true, though, that Origin is better in this regard, even though it only applies to full EA games for 24 hours after purchase.

      And how is Greenlighting more games evil now? They only started Greenlighting “any old toss” as a reaction to being called evil for being gatekeepers or not Greenlighting someones favorite game.

  16. Drake Sigar says:

    I’m really disappointed by the decision. There may be problems associated with a new system (if people are going to pass along one copy, how does GoG make money?) but I don’t see why we should accept the current one which is severely unbalanced, upholding corporate rights and not giving two figs about consumer rights. Why are we making all the concessions in this relationship? Isn’t it funny how in this digital age they’re enjoying more freedoms and protection than ever before? Where’s our freedoms? Where’s our protection?

  17. Syme says:

    Would it be possible to set up an agreement with publishers to set a minimum resell value of which valve and the publishers/developers get a percentage? If publishers don’t want their games being resold they can opt out.

    I’m not sure how this would ultimately affect steam sales, and consumers would probably end up getting a very small percentage, but it would at least be a system where everyone would get something.

    • BarryK says:

      The point is so there is no minimum price point.

      For some reason people just kind of accept that with digital goods, but in reality it’s price fixing by monopolising distribution.

  18. Ooops says:

    I don’t really get it. The doctrine of exhaustion (I call it first-sale doctrine, but whatever) is valid for software, so that Oracle case said. And it doesn’t apply to games because they’re software+audio-visual content, or so the German court says. Two remarks:
    1) Let’s re-sell our INFOCOM games to death!!!
    2) More seriously, if I’m not mistake,n first-sale/exhaustion doctrine does apply to DVDs, so audio-visual content has never been a barrier for applying the doctrine. So what’s wrong here?

  19. Cytrom says:

    Well, valve prints infinite money with steam and dota 2… hell knows what they do with all that pure profit, but if they just spend like 0.001 % of their annual gains to buy off courts, then 2 things are guaranteed:
    1, No one will ever rule against them.
    2, Judges are set for life.

    Go Capitalism, down with humanity!

    (Yes this is ‘only’ about videogames here, but the methods apply to any multi billion dollar business… they can buy fucking presidents, with enough lobby money to bend the rules however they see fit.)

    • AngelTear says:

      Now, I know many Corporations like to do that, but to just go off and assume Valve payed the judge to get a favorable sentence with no proof other than “it benefits them” is a bit much.

      • Cytrom says:

        No THEY (Valve) probably didn’t do it… because many, many sofware corporations already did it for them a while ago, creating a precedent to follow. Which is why pretty much every profesional application (most of which have built monopolies) has worse and worse anti-consumer licensing parameters every year, taking away more and more rights from customers.

        But it is entirely possible that they COULD do it. What would stop them? People complaining about it on the internet? The laws, that are made by people who can be bought?

        • AngelTear says:

          What I don’t like about your comment and your tone is that it sounds like anyone who has some money or power or leverage is automatically evil, not because they did something bad but because they could.

          I mean, Valve has some questionable practices when it comes to their respect of customers, and they’re probably not “the good guy”, but it sounds like your hatred is directed at them simply because they are a wealthy, powerful corporation more than because of anything specific they ever did.

          And in these things, (In politics too, since corruption is a shared theme) I believe making differences is important, and just going full-on aggression because “everyone who belongs to X category is the same” is not going to help.

  20. namad says:

    if valve had lost you wouldn’t've suddenly been able to sell your steam library’s games to someone else. not at all. why? because valve still wouldn’t be required to HELP YOU DO IT. this ruling basically amounts to is it legal to sell your steam account. apparently not. it probably should be. it should also probably be legal to leave it to your son in your will but it’s also not. even if it were legal to resell steam games that would mean it would be legal for you to sell them… it wouldn’t mean that valve had to make the steam software support it (which would then leave you selling the entire account which is currently against the eula a very shady eula like all eula’s are).

  21. GROM says:

    Personally I’ve lost all incentive to sell used games because the price at wich I buy them is so low. This also means that the price at wich you resell them will have to be equally low or even lower to encourage people to buy, since they know they can even get them cheaper if they wait till the next sale, wich these days is always around the corner. couple this with the friends program they are running in beta and you’ll be hard pressed to run out of games to play I think without spending too much money.

  22. Hebrind says:

    Until fairly recently, I was unemployed. There were a lot of games coming out that I just didn’t have a hope in hell of actually trying out, let alone buying because developers these days seem to shun giving the public a working demo that is indicative of the final product (NOT an alpha/beta).

    If this was a SNES or N64 market, and I was unemployed then, I’d have simply asked a friend to lend the game if he’d finished with it. Might even have gone round his house and played some multiplayer with him. Now we live in a world of licenses, EULAs, and DRM. Part of this, admittedly, is due to my chosen medium of PC. But the majority of this is due to outdated thinking, outdated rules and laws, and people who do not understand the hobby we share or how the technology works making these rules.

    It is time for a revolution, I feel.

  23. reggiep says:

    Of course the argument that Steam sales would not exist if you could transfer ownership of games to others is still valid. I don’t think Valve is willing to open the door to that mess even with their own games. What they are really selling is more like a cover charge to access a game. Pay $5 and you can play Portal 2 forever. Not, pay $5 and sneak all of your friends in under your coat.

    • tetracycloide says:

      How can something which was never valid ‘still’ be valid? Sales on goods exist in every market, even for goods which have a vibrant secondary market.

  24. kalirion says:

    I don’t want the ability to resell or transfer your titles on Steam, because that would mean “bye bye huge sales”.

    You already have the ability to share your library with someone.

    • Horg says:

      In no other business, digital or physical, has this proven true. Steam sales would likely continue as they always have.

      • Malibu Stacey says:

        citations needed.

        • tetracycloide says:

          You need a citation to show that there are still sales on goods which can be sold used? Seriously?

          • Deadly Sinner says:

            There are sales, but not huge sales. You only need to look at the console market to see how true that is. Console games rarely get deep discounts, and take much longer to get the discounts that they do have.

            For example, looking at the Gamestop website, Borderlands 2 is $30 new and $19 used. On Steam, the game is $20 right now, and it was $10 this past weekend.

            With used sales, the era of the sub $10 AAA game will be over. If anyone offers a game for that low, the flood of users that buy and then resell the game would ensure that the price stays that low or lower for the rest of the life of the game. So the publisher will keep the game’s price high for longer, instead. Sure, you may be able to get the game used for $5, but you will have to deal with the headaches of the marketplace to have a possibility of getting that bargain instead of just being able to wait for that price for a game that is pretty much guaranteed to be in stock.

          • ohminus says:

            You are ignoring that the publisher can only keep prices that the market actually bears. If the publisher keeps the prices higher for longer, they will find their demand slump and their profit less, not more.

    • fish99 says:

      “You already have the ability to share your library with someone.”

      Yeah and you lose access to your whole steam library anytime they’re playing anything.

    • The Random One says:

      So you wouldn’t be able to buy an AAA game for $5 from Steam in exchange for bring able to buy an AAA game for $5 from some random joe. Sounds like a fair trade to me.

  25. Tyshalle says:

    Personally, I’m kind of okay with all of this. Brick and Mortar stores have made an absolute killing buying and selling used games, and this practice has absolutely cost developers potential sales money. Go into any GameStop or Best Buy and a good third of their shelves are stacked with used games, which they oftentimes try to push you into buying over brand new games because it’s pure profit for them that they don’t have to kick back any percentage of to the people who actually made the game.

    Now try to imagine the biggest digital distributor of games online (Steam) offering to let you sell your used copies of your games. Anyone who thinks selling your games would be difficult isn’t thinking this through. Entire businesses would open up that purely exist to buy and sell used Steam copies, which would absolutely cut Steam and the developers out of potential sales.

    Take that down the line a bit and you’re going to start to see developers combating this in the same way they are with consoles, by locking out some portion of the game unless you’ve either bought an original copy or paid them for the “extra” content, whether this be multiplayer content or like what they did with Arkham City and lock Catwoman out as a playable character. And then everyone will bitch about that.

    This isn’t about developer greed in my mind, unless you think it’s greedy to expect to get paid for your hard work. The big thing about secondhand sales in most cases is that you can tell that the couch you just bought on Craigslist is not brand new. You pay a price to get your goods cheaply. With games, there’s nothing like that. A 10 year old game is going to play exactly as well as it did when it came out originally. Hell, it might even play better in some cases, as your hardware has likely improved vastly beyond its recommended specifications.

    It’s a complicated matter, and so I get why everyone is so split up on the issue, but for me, if we’re being honest, I think this is more about consumer greed than developer/distributor greed.

    • Sheng-ji says:

      The actual people who did the hard work received a pay check and a bonus and will not get a penny more based on steam sales.

      • SominiTheCommenter says:

        Not for published games, surely. But Steam is full of indies too.
        If I’m buying Psychonauts and the money goes to Double Fine, why should Joe Gamer #1984 get a piece of the pie?

        • melnificent says:

          Because if you’re buying it off Joe /gamer it’s HIS game.

          When the dev sold a copy to the publisher/steam/joe gamer they lost rights over what happens to that piece of software.

          • basilisk says:

            Err, what?
            Joe bought a licence to use that piece of software. Not the piece of software itself; that still very clearly belongs to the publisher. That’s an absolutely essential distinction without which the discussion is completely meaningless.

          • Sheng-ji says:

            You know that he meant the licence. Don’t obfuscate the discussion with wordplay, it’s uncouth.

          • CookPassBabtridge says:

            @ sheng-ji: Thats never stopped Deepak Chopra

          • basilisk says:

            It’s not wordplay, it’s a crucial difference. The sentence “When the dev sold a copy to the publisher/steam/joe gamer they lost rights over what happens to that piece of software” is blatantly wrong, and immediately sends the discussion on the wrong track by equating software licences with copies of software. As an answer to “why should Joe Gamer #1984 get a piece of the pie?”, it is absolutely unacceptable.

            Gamers are purchasing licences, which are always tied to something physical. If you can resell the physical component, you can resell the licence. But if Joe gamer purchased a game with a licence tied to his person (such as a Steam subscription), he cannot resell it, because he cannot resell himself. Those are the basics, and the foundation the discussion is built on.

          • Emeraude says:

            If you can resell the physical component, you can resell the licence.

            You can’t anymore though, with all those mandatory online activations of physical copies.

          • basilisk says:

            Emeraude, that’s because those physical copies are merely data carriers. What you are actually purchasing is the Steam key provided in the box, and with it a personal licence.

            I can understand that you don’t like it, but that’s how it is. From a licensing perspective, those retail boxes are completely different from the boxes we used to buy in the 90s, with licences tied to the CD. They just look the same.

          • Emeraude says:

            What you are actually purchasing is the Steam key provided in the box, and with it a personal licence.

            Which is why I never made a business deal involving Valve, and probably never will.

            Personally I always thought that’s one of the reasons Valve and publishers were worthy of being taken to court.

            Why pretend to sell a needless CD if that has no value, and can’t even be used to install the game you paid for, if not to abuse the trust of people and make them believe they are making the very same transaction they had been doing up till then, by keeping the forms similar, while enforcing different principles ?

            All that being said, I was just pointing out that, in the current market, your affirmation wasn’t true. Your physical copy has been rendered value-less.

          • basilisk says:

            And I was merely pointing out that the assertion is still 100% valid. Yes, it can be sometimes unclear what type of licence you are actually purchasing, but that does not have any impact on the transaction itself. Caveat emptor, you know.

            But we both know what we are talking about here, so these fine points hardly matter.

          • tetracycloide says:

            @ basilisk

            I love how your response to the accusation that it’s obfuscating wordplay is clearly spelling out exactly how it’s wordplay as if that justifies it.

          • The Random One says:

            The fact that Joe Gamer bought a licence and not the game only means he can’t sell Psychonauts as if he had made it, or option a sequel, or reverse engineer it to market a spinoff themed around Star Wars. He still owns (first sale doctrine) the licence, and I see no reason why he should not be able to give it to me in exchange for a buck if we’re both cool with it.

          • Deadly Sinner says:

            Correct me if I’m wrong, but after reading about the first sale doctrine (in the US,) it seems to only make clear that the original creator of something is not entitled to any extra money from someone reselling that something. There doesn’t seem to be anything that requires that the creator to facilitate the transaction or make sure that something holds value. If they did, then that would lead to some interesting questions. For example, does that mean that multiplayer only games must keep their servers on in perpetuity? Because once those servers are off, that game is worthless whether you can resell it or not.

            On the other hand, I think you should be able to sell your Steam account. If you buy a Steam game, you’re entering into a fixed system. You buy a game, it’s tied to an account, and any computer that logs into the account can play the game. Yet if you sell your account, then Valve has to actively disable your account and revoke all of your games. I also think being able to sell your account would achieve a happy medium, since there would still be value in buying a game new.

    • kalirion says:

      Best Buy sells used games? Didn’t know that. Then again, I’m not a console gamer.

    • Wisq says:

      This, absolutely.

      Used games don’t scale. Sure, they seem like a good idea when you’re wanting to loan a game to a friend, or sell it to a neighbour. But once you get into today’s massive, global, organised reselling of used games, things get out of hand.

      Employees at games shops are specifically trained to focus on used sales above all else. They’re instructed to always do their utmost to convince customers that they should buy the used copy, even if they’ve already picked out the new one. They offer warranties on used games that meet or exceed the warranty they would get for a new game, to ensure that used games are no less usable than new ones.

      Aside from being questionably unethical and self-destructive — they rely on the games industry for their livelihood, yet regularly attempt to deny sales to said industry — it’s easy to see how this can do a lot of damage.

      The reason that used products work for physical goods are twofold: One, physical goods have a finite life before they wear out, so there’s always a market for new ones. Two, there’s a difference between buying new and buying used. Those who want and can afford a quality product at the very beginning of its (hopefully long) life can buy new goods. Those who can’t afford it or don’t mind a little wear and tear can buy used. Usually, these happen in different stores / via different services (e.g. Craigslist). You decide on what sort of customer you are at that given moment, visit the correct store / service, and walk out with what you wanted. And while there’s a significant portion of people who always buy used and wouldn’t care to buy new, there’s also always enough buy-new customers (thanks to our consumerist culture) to keep everything working smoothly.

      What happens when your goods last (effectively) forever and your only new-games stores are actively pushing used copies, even warrantying them to be as good as new? How many new copies are you realistically going to sell? Probably a little more than the number needed to seed the used market, which will then continue trading amongst itself forever, with zero dollars going to the publisher.

      So now, I ask you:

      How many times have we lamented how publishers focus on day-one sales, via preorders and sometimes-deceptive marketing, to the exclusion of all else? Well, can you blame them? The day-one sales are the only sales they can count on! Any sales after that are going to either be because no used copies are available (increasingly rare due to improved logistics and services), or because they’re a die-hard new game buyer.

      How many times do we wish for more singleplayer experiences, rather than tacked-on multiplayer? Multiplayer is seen as a way to keep people owning the game longer, thus delaying the onset of the used market. Can you really blame them for trying to include it in every title?

      How many times have we wished that games could be whole packages again, instead of a limited base and then gobs of DLC? Slowly doling out DLC is another means to try to get people to hang on to games.

      How many times have we balked at the high price tag on “AAA” games? I don’t have the data to definitively say that we’re in this position due to used games, but it stands to reason that if you’re only going to end up selling new copies to your die-hard day-one fans, then you should aim for the highest price they’re willing to pay. No, I don’t think anyone truly expects them to drop below the $60 price point; corporate greed is too much for that, and not enough people see it as an issue to be worth their while to reduce it. But a lot of AAA publishers are willing to make deals for Steam sales down the line, and I imagine that’s largely beacuse they actually do sell copies on Steam long after release, plus they no longer have to worry that they’re just feeding the used market.

      How many times have we grumbled at microtransactions, especially when the gameplay is made grindy to encourage them? Not only do microtransactions offer a way to make money even from used game buyers (or in F2P games), but they allow you to extract literally the maximum the user is willing to pay, instead of just guessing and pricing your game accordingly. It also gives people a sense of investment in your game, so they’re more likely to keep playing it for longer.

      And finally, how often have we lamented that publishers focus-group their games to death and refuse to take risks any more? Truly, this is the least provable of my points. But I think it’s fair to imagine that used games can only broaden the profit gap between classics that people keep in their libraries and that are rarely available used due to demand and longevity, versus flash-in-the-pans that people buy (probably used) and then sell right back when they’re done. If that spectrum were smoother — if a lower quality game just meant you got proportionally lower sales — then maybe you might break even, or at least recoup a large portion of the cost. But instead, you’re faced with the risk that if you can’t produce a captivating enough game, you’ll end up being traded around forever and never see more than a few sales here and there after launch day. Given that innate risk, who can blame publishers for refusing to take any other unnecessary ones, like gambling on new and innovative games?

      So instead of these murky used-game waters, Steam offers us a clear approach that fits precisely into the standard model of product pricing, while also ensuring that the developers (or at least, their publishers) continue to get money for their efforts. You start out reasonably high, because you want your day-one buyers to pay as much as they’re willing to; maybe you offer a small discount to encourage the early adopters. You let that sit for a bit, catching all the latecomers and the people who can’t wait for a sale. Then you start offering sales, progressively dropping the price lower and lower to capture a greater proportion of the bargain-hunting audience, depending on how much they can afford and how much value they see in your title — but these are temporary changes, ensuring that if someone’s late to the party and can’t wait for the next sale, you can still get full value from them.

      And so ultimately, you get your game at the price you want (possibly even lower than the used price), the publisher actually receives your money (instead of just going to the store itself), and there are fewer artificial pressures that encourage undesirable behaviours (e.g. tacked-on multiplayer).

      Steam and the lack of used games is why I’m happy with the current state of PC games sales. If being able to sell/give games to my friends and family means a return to anything similar to the existing used games retail market, I say no thanks — I can live with just buying the games when they go on sale.

      • basilisk says:

        Very nicely put, dear sir.

      • Sheng-ji says:

        A lack of used sales isn’t preventing any of the above, so you can’t claim that allowing the used sales would cause it.

        • Emeraude says:

          More amusingly, all of the issues raised – up to the very existence of the modern second-hand dedicated retail rings is – purely of the publishers’ making.

          Basically they fucked up and are now demanding that their their customers pay for them – while doing a great victimization act that sets said customers as some kind of moral culprits.
          Which makes it all the more scummy.

        • basilisk says:

          It’s not about making it possible, it’s about encouraging it.

          To look at the issue from another perspective, why is the PC game market markedly different from the console market in terms of consumer prices – which it undoubtedly is?

          Also, to give a very specific example, EA very openly said that their heavily criticised “Project Ten Dollar” was 100% about fighting used sales, nothing else. The used market does impact business decisions, and that’s a fact.

          • Sheng-ji says:

            EA also very openly stated that sim city was impossible to take offline. Don’t believe everything you are told by people who want your cash!

            All those things are encouraged by the desire to maximise profits. Used sales are not the driving force behind those business decisions, a number on a spreadsheet is:

            How many times have we lamented how publishers focus on day-one sales, via preorders and sometimes-deceptive marketing, to the exclusion of all else?

            We’ve cut corners in making our game. Lets maximise sales before the reviews are published.

            How many times do we wish for more singleplayer experiences, rather than tacked-on multiplayer?

            Some people only play multiplayer games. Let’s try to sell them some copies of our single player game.

            How many times have we wished that games could be whole packages again, instead of a limited base and then gobs of DLC? Slowly doling out DLC is another means to try to get people to hang on to games.

            DLC is virtually free to make and sells for a shockingly high premium. Lets do lots of that.

            How many times have we balked at the high price tag on “AAA” games?

            What is the top price that the market will bear, sell it at that.

            How many times have we grumbled at microtransactions, especially when the gameplay is made grindy to encourage them?

            See DLC. Also this is a free to play issue, not sure how it’s relevant to the second hand market thing.

            And finally, how often have we lamented that publishers focus-group their games to death and refuse to take risks any more?

            Er… don’t see the link here – we focus group games to make sure that the game appeals to the demographics we are targeting.

          • basilisk says:

            Don’t believe everything you are told by people who want your cash!

            Even when they are quite literally saying “we want your cash”?

          • Emeraude says:

            “Don’t believe everything” doesn’t mean “believe nothing”.

          • Wisq says:

            Used sales are not the driving force behind those business decisions, a number on a spreadsheet is:

            … and used games could well affect that number. So to push this away to “business decisions” is just circular logic.

            How many times have we lamented how publishers focus on day-one sales, via preorders and sometimes-deceptive marketing, to the exclusion of all else?

            We’ve cut corners in making our game. Lets maximise sales before the reviews are published.

            And yet this happens even for high quality, universally praised releases. Used to be that games were judged by long term sales figures; now, it’s always that first week.

            How many times do we wish for more singleplayer experiences, rather than tacked-on multiplayer?

            Some people only play multiplayer games. Let’s try to sell them some copies of our single player game.

            In my experience, most people who only play multiplayer games are probably going to pick those games up because their friends are playing them. If the multiplayer is dry and tacked-on, it won’t last long enough for that.

            How many times have we wished that games could be whole packages again, instead of a limited base and then gobs of DLC? Slowly doling out DLC is another means to try to get people to hang on to games.

            DLC is virtually free to make and sells for a shockingly high premium. Lets do lots of that.

            That’s a pretty broad generalisation there. Sure, some companies just do a few skins or maps as DLC, but others add whole game modes, new player characters, new campaigns. They may save on engine development, or maybe it’s keeping the devs busy while the designers work on the next title, but regardless, it still costs money and it’s still sold pretty cheaply. In some cases, I’ve seen them give it away for free. (And that’s not about piracy, because the pirate versions have them, too.)

            How many times have we balked at the high price tag on “AAA” games?

            What is the top price that the market will bear, sell it at that.

            Even when both economic theory and practice has shown that you can make more money at a lower price due to more sales?

            But of course, that just drives the used game price lower, all in an effort to try to appeal to gamers’ wallets — when the ones who care about their wallets are already waiting for the used copies to appear.

            How many times have we grumbled at microtransactions, especially when the gameplay is made grindy to encourage them?

            See DLC. Also this is a free to play issue, not sure how it’s relevant to the second hand market thing.

            I take it you’re not aware of the recent wave of full-price titles that are also doing microtransactions? Dead Space 3 would be the most-cited example.

            Plus, each of those microtransactions is locked to the account that buys them. If you lock a console game to one user’s account (like Microsoft tried to do), the userbase gets all up in arms. But make a cheap / F2P game that’s so grindy that people feel compelled to buy in-game items locked to their account, and nobody seems to mind.

            And finally, how often have we lamented that publishers focus-group their games to death and refuse to take risks any more?

            Er… don’t see the link here – we focus group games to make sure that the game appeals to the demographics we are targeting.

            The objection isn’t about focus groups, it’s about titles that have been “focus-grouped to death”, i.e. trying to appeal to everyone everywhere to the detriment of gameplay. And yes, sure, this is about overall sales and money. But it’s also about trying to shovel as many copies out the door as quickly as possible before the used market sets in. Not to mention, finding audiences outside your “core gamer” audience — not just because they’re extra sales (which are somewhat offset by lost core-gamer sales), but probably also because those people aren’t as familiar with the trade-in system and are less likely to take advantage of it.

            My point isn’t that any of these are exclusive to a market that features used games. But I do believe that used games strongly encourage these undesirable behaviours. And I also look at Steam and see a flourishing market, with games of all sizes being sold at all sorts of price points depending on your willingness to wait for a sale.

            I also think that the current institutionalised system of used games, where copies are near-infinitely passed around with no money ever seeing the publisher, is unethical. In fact, from the perspective of the game developers, how is it any different to piracy? Proponents of used games argue that people who sell their games can go on to buy more games with their trade-in money — but I would argue that they’ve denied the publisher a sale by supplying retail with another used copy to sell, and also they’re more than likely to go buy another used game anyway.

            Given a choice between getting games at steep discounts because Steam’s economics allow for that (and knowing my money is going to the right place) and keeping them forever, or getting games at “effective” discounts because I trade in a bunch of titles (for the profit of the retailers) and never see them again … well, the choice is pretty clear to me.

            (Also, on a more technical note: You know all those indie games that only use Steam as a delivery platform, and are independently launchable and effectively DRM-free once you’ve installed them? Being able to buy and sell used games on Steam would probably put an end to that. Just saying.)

          • basilisk says:

            Re: the DRM argument – it should be pointed out that this whole thing does not apply just to Steam. Virtually every online game store (a certain part of Greenman’s catalogue being the only exception that I’m aware of) does the exact same thing, including GOG and the Humble Bundle/Store/Widget – they all use the same per-user licensing mechanism, where licences are tied to user accounts (or e-mail addresses) and non-transferable. It’s not at all fair to criticise only Steam for this, and yet many would think it silly to ask the same of GOG, because a used games marketplace can’t really work in a DRM-free environment.

            So in a sense, this suggestion is indirectly promoting stricter DRM. Which I don’t think is worth the potential benefits.

          • Wisq says:

            Yes, exactly this. Things are much simpler when you can (for the most part) safely assume that if you were once authorised to play a game, you’re still authorised to play that game. Take that away by allowing game reselling, and the noose actually gets tighter, not looser.

      • tetracycloide says:

        Your entire argument is predicated on the assumption that used sales MUST take from new. Studies have shown this to be false even for games. Consumers simply don’t treat used and new as close substitutes.

        • Wisq says:

          Without seeing these studies you’ve not cited, I’m going to guess what they say: That some people will always buy used, and thus, if you deny them their used copy, they’re not going to buy new. (That’s the same argument people use about piracy: that not every download is a lost sale, because some of them would never have bought it in the first place.)

          But I ask you, why are people buying used instead of new? Surely it’s not just so they have the satisfaction of owning a copy of a game that an unknown number of previous people might have owned? So we can probably safely assume they buy it used because of the price.

          Now, what if there were an equivalent system, whereby you could get a game cheaper if you wait a little bit? You already have to do that with used games, because you have to wait for some people to finish the game. Only now, when you bought that $60 game for $40, or $20, or maybe even under $10 (if you wait long enough), you’re getting a new copy. You’re sending your money to the people who brought you that game. You’re not even taking the game away from anybody else. Wouldn’t that be nice?

          In a system where new games can eventually be any price … yes, every used game is a lost sale of a new game.

          • Emeraude says:

            The system is not really equivalent though, as it is build on the assumption that you abandon control of the thing you paid for to the people to whom you gave money.
            Sure you can get the game a at lower price, but you don’t get the same game. You don’t get a game that can be lent, given, resold or be inherited.
            That’s why it’s cheaper in the first place: it’s worth less.

            There’s a reason some people abandoned the PC platform in favor for consoles as Steam’s influence grew.

          • Wisq says:

            There’s a reason some people abandoned the PC platform in favor for consoles as Steam’s influence grew.

            Funny. Steam is a large part of why I abandoned my few-years stint with consoles and came back to PC.

            It works both ways, but I don’t know that we’ll ever have reliable numbers to say how many went each way.

          • Emeraude says:

            It works both ways, but I don’t know that we’ll ever have reliable numbers to say how many went each way.

            Oh totally agreed. And I really wish we had some tentatively reliable numbers.

            I mean, if it was only people in my own gaming circle, I’d think it’s just a matter skewed sample.

            But I keep stumbling on people that really hate the thing – from that coworker of my brother that just totally left gaming this gen because of his totally eroded trust in the console publishers – this after having left the PC market because of Steam, to that kid working in retail I was talking with last week who was asking me how to build a gaming PC, and who upon being told how Steam worked flatly told me “well fuck that I’m staying on consoles”.

      • Jenks says:

        This is the best post.

      • ohminus says:

        Your argument is self-contradictory. Aside from the fact that day 1 sales – or rather, sales close to the date of bringing a product onto the market – are the great profit makers for any given product out there, allowing resales of games would BOOST day 1 sales, as more people would be willing to pay higher prices, knowing they can recover some of the cost later on. In fact, studies have shown that in the absence of a used game market, prices would have to be lowered by as much as 33% to keep up profit.

        Aside from that, the earlier a sale the better for the publisher and developer, as the sooner they have more money to work on the next product.

    • Emeraude says:

      The mortar shops *had* to focus on second hand sales – Publishers forced their hands by making the margins of the shops so low that they couldn’t stay afloat any other way (not to mention many unsavory practices like forcing them to buy products they they wouldn’t sell if they wanted access to the big seller – I’ve had some contractual dealings with Nintendo representatives in the 90s – ethical was not part of their vocabulary) .

      Then publisher then fully supported the biggest franchises that emerged from abusing the economical turmoil of the independent shops in order to buy them, who scaled things up to turn an better profit making the holy first month sales bigger while at the same time cannibalizing more and more with second hand sales.

      Take that down the line a bit and you’re going to start to see developers combating this in the same way they are with consoles, by locking out some portion of the game unless you’ve either bought an original copy or paid them for the “extra” content

      But that’s *already* the situation on PC.

      • Wisq says:

        Okay, so the situation is the fault of the publishers at the time. That doesn’t mean we should maintain used sales just as a means to punish all the current publishers (some of whom didn’t even exist back then) when a better alternative arrives.

        It’s also interesting that not every retailer feels compelled to do the used-games thing — or at least, some of them are extremely late to the party. I don’t know the situation in the UK or US, but here in Canada, we’ve got EB Games (the dedicated game store, a division of GameStop) that has been doing the used games thing for as long as I can remember. But we also have Future Shop (electronics store), Wal-Mart, Best Buy, Toys ‘R’ Us, etc. all selling consoles and console games. It’s been a while since I bought games there, and I’ve been informed by friends that some of them have started selling used games, but that would have to be in the past few years, a decade after EB Games was doing it.

        Were all these stores really selling video games as a loss leader for their TVs and home audio systems? Or at least, at low enough profit to be barely worth the floor space and employee time? Would they continue doing that for so long, rather than just saying “take your games back, this isn’t profitable enough for us”?

        The entire situation seems to be a mess of finger-pointing and crocodile tears and threats of impending insolvency. The only aspects of this situation I feel I can trust are logic and my own moral compass. And so I still strongly feel that — for all their flaws and for however much I want to strangle them sometimes — games publishers have the right to earn money on the sales of their games, and that retail stores have gone way too far in trying to promote used sales over new.

        • Emeraude says:

          Were all these stores really selling video games as a loss leader for their TVs and home audio systems?

          As far as I can tell from their European equivalent: yes.
          That being said I have no intimate knowledge of the specificities.of the American market.

          Edit: you’re doing some interesting Jedi Mind Trick here. Keeping the second hand market alive is not a mean to punish the publishers – it’s refusing that the publishers punish the customers by taking away from them what they already own, just so it can pay for the errors they committed themselves in the first place.

          While trying to make the customers feel guilty for daring to ask to keep their rights too.

          • Wisq says:

            Keeping the second hand market alive is not a mean to punish the publishers – it’s refusing that the publishers punish the customers by taking away from them what they already own, just so it can pay for the errors they committed themselves in the first place.

            My statement there was only meant to say, arguments that “the publishers brought this on themselves” are, while not totally irrelevant, at most just a historical footnote.

            That said, technically we are talking about courts trying to force Steam to allow users to sell used games. Which means we’re actually arguing about trying to get our right to resale back, not fighting to prevent them taking it away.

            I for one feel that current digital distribution platforms (particularly Steam) are actually better for consumers than the old retail system. There’s a trading of freedoms at play, and I feel we’ve gotten the better half. Rolling things back now would actually involve tighter DRM, because now the DD platforms would require regular check-ins to make sure you still have the rights to play your game.

            Physical reality is policed by, well, the laws of physics. Two people can’t have the same physical copy of a game at one time. But digital is not physical, and trying to apply the same old physical rules to digital is going to require far more digital policing than anyone is ready for.

          • Emeraude says:

            I for one feel that current digital distribution platforms (particularly Steam) are actually better for consumers than the old retail system.

            And that’s where we disagree. I guess. I don’t really see anything better we got from those – especially nothing whatsoever that required we abandoned any right to get it.

            Rolling things back now would actually involve tighter DRM

            Or their suppression altogether. Remember that all the EU Court of Justice said is that they cannot oppose your re-selling. They don’t have to help it in any way. They can even make it so the market value of those games come close to zero – for example by cutting them off from the service infrastructure altogether. Which would give you an incentive o buy DD from the platform: you get platform support.
            If anything, they shouldn’t have linked the service platform and the DD shop so intricately.

            But digital is not physical

            Oh totally agreed, that’s why I find it unacceptable that they imposed restrictions made for the digital on the physical for one.

            As I said somewhere else in the thread: get rid of the DRM on the boxed copies, but cut access to the unnecessary “service platform”. Make the registering optional. People who want a second hand market can still have it. People who want a full DD future can still have it.

            Publishers want all the advantages of all the options they use (service and product; physical and digital) but none of the possible costs/duties/disadvantages for them that could be good for the consumers.

            My statement there was only meant to say, arguments that “the publishers brought this on themselves” are, while not totally irrelevant, at most just a historical footnote.

            It’s totally relevant when the publishers are trying to guilt trip the audience into accepting their demands.
            The onus is no them, not on the customers, and trying to guilt trip them is scummy at best.

          • Wisq says:

            And that’s where we disagree. I guess. I don’t really see anything better we got from those – especially nothing whatsoever that required we abandoned any right to get it.

            I can log in to any computer in the world, type in my username and password, and get access to every game in my entire library. My entire home could burn to the ground, computer and games and everything, and I would still have my entire collection.

            That alone is worth the price of admission in my view, but the list only goes on from there:

            I can retain my entire library (I like to replay old games). I don’t need to hang on to physical copies (I still have a bunch of closet and shelf space dedicated to my old PC and PS2 games). I don’t feel like I’m wasting money by not trading them in or selling them to someone.

            My games are always up to date; I don’t need to worry about hunting down patches online. My games, my DLC, and my expansions are automatically installed. If you’ve ever tried to install a game with a lot of DLC and expansions, like the Sims 3, it’s ridiculous — installer after installer, disc after disc. Steam just puts them all in place. Most other DD services are still delivering me executable installers, which take up 2x the space and often double the total install time too — and then frequently require that I register / log in again

            My internet connection is faster than my bulk storage hard drives, so I don’t even bother backing my games up any more (to save on time / bandwidth). If I need space, I can just delete a game. At over 1 gig per minute download speed, I can have most games reinstalled in a scant few minutes.

            I get to try out tons of games I wouldn’t otherwise be able to afford to play. Under $10, even $5 sometimes. I get to do Humble Bundles that give me a bunch of games for whatever I want to pay. Most of these games register on Steam, so I get all the benefits of that as well. And I can buy four-packs that give me four games for the price of three, and I can split the price between my friends and myself. All of these — deep discounts, pay-what-you-want sales, four-packs — only really work because the game is locked to my account, so Steam knows I’m not just buying in bulk to resell them.

            Remember that all the EU Court of Justice said is that they cannot oppose your re-selling. They don’t have to help it in any way.

            Well, status quo then. They’re not opposing your reselling, they’re just not giving you any way to do it whatsoever. Nobody seems to have (successfully) taken them to court on this yet, even though the ruling was passed almost two years ago.

            If anything, they shouldn’t have linked the service platform and the DD shop so intricately.

            They’re not linked as tightly as you think. Plenty of games sell on the DD shop and don’t use the Steamworks platform. Some even do the reverse. I’ve bought plenty of games straight from developers, then registered them on Steam to get the benefits of that.

            As I said somewhere else in the thread: get rid of the DRM on the boxed copies, but cut access to the unnecessary “service platform”. Make the registering optional. People who want a second hand market can still have it. People who want a full DD future can still have it.

            And how do you propose to make their physical copy stop working when they register it on Steam? For that matter, what about games that use Steam for their server browsing / matchmaking / friend system? Should they really have to come up with two independent systems, one for boxed copies and one for Steam copies?

            In fact, games that are sold on Steam but don’t use the Steam friends system are one of my biggest annoyances; I shouldn’t have to go register all my friends from scratch when you’re selling on a platform that already knows them all.

            I frequently like to cite Borderlands 2 as what I hope the future of gaming is like. Aside from the general quality of the game, the drop-in drop-out multiplayer is, to my eyes, amazing. Although you can easily play in invite-only / offline mode (and it doesn’t change the game in any way), the default mode lets your friends join at will. Most people I know who started playing never even realised this until one of their friends dropped in and started helping them out. Obviously not everyone is going to 100% welcome that (and might turn it off after that), but it serves as a very keen demonstration of how to seamlessly merge singleplayer, multiplayer, and your personal circle of friends into one easy-to-use package.

            It’s totally relevant when the publishers are trying to guilt trip the audience into accepting their demands.
            The onus is no them, not on the customers, and trying to guilt trip them is scummy at best.

            I don’t typically hear publishers trying to guilt-trip anyone. Usually they just try to work behind the scenes, and they leave their motivations deliberately mysterious. Even the XBox One DRM announcement was (from my memory) not about how “the publishers are having trouble because they don’t make money from used games”, but rather (in traditionally blithe, out-of-touch Microsoft manner) all about how great the platform would be and how you’re going to love it.

            And you know what? I was in favour of it. Sure, I had no intention of buying a Microsoft console just on principle. But this wasn’t some schadenfreude on my part. I really was hoping that consoles would finally give up their archaic physical ways and come over to the land of digital delivery, deep discounts, and play-any-game-anywhere mobility — not to mention shutting down GameStop et al, whose used games policy I morally object to (as I’ve probably mentioned way too many times elsewhere).

            And then, just as I was getting ready to at least appreciate their gumption (if not their common sense), they realised they’d made a terrible PR mistake and pulled their XBone-180. So now they’re out-of-touch and spineless. Ah well.

          • Emeraude says:

            @Wisq

            I don’t see any of those things you find positives as ones that demanded any trade off.

            Some I even find more negative than positive overall (the ubiquitous auto-patching especially).

            They’re not opposing your reselling

            Yes they are, the account tying makes it impossible for you to part with your possession. Hell, correct me if I’m wrong, but my understanding is that you can’t even suppress games from your account/list – you don’t even have the right to throw them away.

            And how do you propose to make their physical copy stop working when they register it on Steam?
            It doesn’t. It doesn’t need too. It has lost all value from the DD crowd having been registered already – no one else can use it to register. It still has full value for the physical crowd: it can be installed and played.

            For that matter, what about games that use Steam for their server browsing / matchmaking / friend system? Should they really have to come up with two independent systems, one for boxed copies and one for Steam copies?
            As long as they allow for players to create private servers I think they’ll manage just fine on their own – as they did before all those services got centralized.

            I don’t typically hear publishers trying to guilt-trip anyone. Usually they just try to work behind the scenes

            You mean I’ve been imagining all those past years’ “Second hand sales are worse than piracy ! If you buy second hand sales, you’re no better than a pirate as far as we are concerned and you’re killing the industry” ?

          • Wisq says:

            I don’t see any of those things you find positives as ones that demanded any trade off.

            Well, they do. If people could resell or give away games, we’d almost certainly lose the deep discounts; otherwise, they would be massively abused by people who buy them in bulk, wait for the sale to end, and then offer them at a reduced price. We’d lose offline mode, because then you could buy any game, download it, go offline, and play it indefinitely even after you sell it. We’d lose games that offer no DRM post-install (a lot of indie titles can be launched that don’t check for Steam authorisation) because of the same thing.

            The current ecosystem largely depends on not being able to resell games. And the current ecosystem is very, very benificial to the customer. This is why I say that we’ve given up that freedom in exchange for several more.

            Some I even find more negative than positive overall (the ubiquitous auto-patching especially).

            Which can be disabled at will.

            Granted, yes, if you’re (re)installing the game, you can’t choose an older version. But in the exceedingly rare cases that there’s some reason to go back to an older version, the community comes up with solutions, e.g. supplying key files / patches to do it.

            Plus, most games patched “the old way” are still going to have this problem. When they release roll-up patches that include all previous ones, the previous ones tend to fall off the net eventually, leaving you with no option but to either patch all the way or not patch at all.

            They’re not opposing your reselling

            Yes they are, the account tying makes it impossible for you to part with your possession.

            Eh. That was just my tongue-in-cheek response to you saying that they didn’t have to help the process at all. What better way to not help the process than to not offer any way to do it, right?

            And how do you propose to make their physical copy stop working when they register it on Steam?

            It doesn’t. It doesn’t need too. It has lost all value from the DD crowd having been registered already – no one else can use it to register. It still has full value for the physical crowd: it can be installed and played.

            So, every game is now worth two games. Buy a physical game, register it online, own the DD version forever but sell the physical copy to someone else. Or, buy a physical game and sell the DD version to someone else.

            Unless you want every physical game to cost 2x as much, this doesn’t seem like a particularly reasonable demand.

            As long as they allow for players to create private servers I think they’ll manage just fine on their own – as they did before all those services got centralized.

            So, if the DD game uses Steamworks for its server browsing / matchmaking / etc., then the physical users get no server browser, they just have to create private servers and join each other by IP? Talk about ghettoisation. That’s not really going to fly for most multiplayer titles.

            You mean I’ve been imagining all those past years’ “Second hand sales are worse than piracy ! If you buy second hand sales, you’re no better than a pirate as far as we are concerned and you’re killing the industry” ?

            I don’t actually recall hearing publishers say that; I mostly hear gamers and major personalities saying that (e.g. TotalBiscuit). But I guess I listen to different sources.

          • Emeraude says:

            The current ecosystem largely depends on not being able to resell games. And the current ecosystem is very, very beneficial to the customer. This is why I say that we’ve given up that freedom in exchange for several more.

            All those issues could have been avoided with – from both sides – by leaving retail unsullied by the DD side of things though.

            Which can be disabled at will.

            Which has no incidence on the morbid influence it has had on software scheduling.

            Unless you want every physical game to cost 2x as much, this doesn’t seem like a particularly reasonable demand.

            Actually, yes, that’s exactly what I had in mind.

            So, if the DD game uses Steamworks for its server browsing / matchmaking / etc., then the physical users get no server browser, they just have to create private servers and join each other by IP? Talk about ghettoisation.

            Yes. Isn’t it marvelous ?
            (If the market is there, developers will stop using Steamworks and make their own tools)

            But I guess I listen to different sources.

            Totally. I even had to check who TotalBiscuit was, to tell you the truth.

  26. Malfeas says:

    Being denied a basic right that is there for the protection of the consumer for pure capitalistic purposes is what makes me feel ever more as if I’m slowly headed towards a cyberpunk future with megacorps calling the shots.

    EDIT:
    And let’s be candid here: Neither the music, film nor gaming industries are in any danger of not making a killing with their products. Them making less of a killing hurts nobody, whatsoever.

    • Loyal_Viggo says:

      ^^ This… is common sense and the truth.

    • Wisq says:

      Film, sure. They typically make back the cost of their movies in theatres. Giving us home editions is just icing on the cake.

      Music, yeah. Concerts, merchandise, radio fees. Plus the cost of recording isn’t all that high, so it’s really just balancing marketing against sales.

      Games these days have the worst position of the three: High development cost, direct-to-customer sales, limited audience. If nobody’s in “any danger of not making a killing”, why are huge games publishers posting quarterly losses and even going under?

      Don’t get me wrong, I certainly think many of the big giants are squandering their money, while some of those that are actually doing well (e.g. ActiBlizzard) seem to have lost their souls to do so. But with so many developers and sometimes even publishers closing shop, is it really fair to say that they should just get used to not being quite so rich?

      • ohminus says:

        ” If nobody’s in “any danger of not making a killing”, why are huge games publishers posting quarterly losses and even going under?”

        Because they suck at marketing? As evidenced not only by their position on this issue, but on many others as well. Marketing to them to no small degree is flashy trailers, huge plastic standups at E3, GamesCom etc, full-page ads in games magazines and sending out review copies.

        The marketing “guru” Philip Kotler said “Marketing is not the art of finding clever ways to dispose of what you make. Marketing is the art of creating genuine customer value. It is the art of helping your customers become better off. The marketer’s watchwords are quality, service, and value.”

        Quality? We’ve come to expect us as customers being the final stage of quality control. Publishers don’t bother waiting to publish a product when it’s done. Rather, it’s being patched up post-publication.

        Service? With all the forced registration, forced online etc. we’ve been seeing, hardly. Rather, we as customers have to serve the publisher, make their control and their market research (if any) as easy as possible.

        Value? Prohibiting used sales is reducing the value of the games. Likewise the hassle to start a game mentioned above. Likewise rushing a game to finish and cutting out lots of content originally promised.

  27. SkittleDiddler says:

    These consumer watchdog groups are barking up the wrong tree — what about the fact that Valve can take away our accounts at any time with no explanation given? Or how about the fact that we’re forced to accept any new EULA changes or they block access to our previously purchased titles? What about Valve’s shady interpretations of “software as a service” and “ownership”? Or blocking class action lawsuits?

    Screw second-hand sales. There are much more egregious abuses of consumer rights going on under Valve’s stewardship.

    • taristo says:

      Absolutely, I’d not even say that they are “barking up the wrong tree” but that they mistook the painted green van for a tree and are barking up that.
      “German consumer watchdog group Verbraucherzentrale Bundesverband argued that if copyright law, through the doctrine of exhaustion, allowed the resale of used computer game DVDs, then a clause in a standard contract restricting the transfer of the online account necessary to play the game was at odds with the basic principles of statutory law and therefore unreasonable, abusive and, ultimately, unenforceable,”

      They didn’t even argue that the resale of games or single licenses should be allowed, but that people should be allowed to resell their accounts. The same thing they argued when they lost back in 2010.
      They didn’t think to bring retail games that are bound to Steam into it, or Valve claiming that buying games is a “subscription” or the way they try to enforce their EULA or any number of things and they chose to go with that… again.

      • fish99 says:

        That’s a shame, but in my eyes it’s only a matter of time before someone brings the right case and Valve lose this battle in europe.

  28. fish99 says:

    So Valve can afford expensive lawyers.

  29. trjp says:

    Can I be the first to point-out that the photo is a gavel and I don’t think judges outside of the US actually use those?

    In the UK, only Auctioneers use gavels – they’ve never appeared in a UK court (other than on TV)

    Do german judges use them then? :)

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  31. melnificent says:

    Ownership it’s a wonderful concept. Why are we led up the gardenpath when it comes to digital ownership though?

    Not just software, but look at how often photos are stolen online and used in commercial practices (newspapers mainly).

  32. Metalmickey says:

    How about if Steam did allow people to sell on their games, users can set the sale price, but when it’s sold only a fixed % of the selling price goes to the original owner (somewhere around the 40-70% region) and the rest goes to whoever it would have if a new copy had been bought. Account owners can still get part of their money back, they’ll still want to set their second-hand prices as high as they can to get the most return, and Valve, publishers and developers get their cut too.

    It also wouldn’t be too hard to implement a tag so that each digital game can only be sold on once. That way, some people may still prefer to buy a new copy than a slightly cheaper used one even if there’s no ‘one use only code’, because if they buy a new copy they’ll have the option of re-selling it later to get some money back, whereas with a second hand marketplace version they won’t.

    I’m sure other intelligent readers will be able to point out some flaws in the above, but considering it just took me a couple of minutes to come up with those ideas, I’m sure that a proper team could figure out something similar that makes users happy without the industry as a whole losing out.

  33. A GOD DAMN HORSE says:

    It strikes me that this:

    It is perfectly possible for Valve to allow customers to buy a game, play it for as long as they wish, and then transfer that uniquely coded copy of that game to someone else, either for free, or for an agreed fee. Heck – doing it through their own software, they could even enforce a chunk of that money reach the developer or publisher at the time.

    Is more or less what the Xbox One was originally going to do before the collective gaming public and media decided that allowing publishers to recoup secondary sales from digital licensing was a terrible idea and Microsoft had to do a 180.

    • tetracycloide says:

      Well that’s disingenuous of you. Adding a controlled secondary market to one where no secondary market already exists is pretty different from enforcing top down control on an existing and fairly free secondary market. One is a step forward, the other backward and obviously so. Your conflation of the two because the results would be the same is ludicrous.

      • Emeraude says:

        The thing being that Valve would do both here: having destroyed the value of physical copies of PC games and their second hand market (yes not single handedly, but I hope you get my point), it would then re-creating in a form more fitting to them and publishers. On top of creating the new market for DD sales that doesn’t currently exists.

    • malkav11 says:

      Well, except they were going to do it with disc-based games and enforce it by requiring you to connect every game to their servers on an ongoing basis, thus essentially guaranteeing those games would be permanently shut off at some point in the not terribly distant future like Microsoft did with the original Xbox’s Live servers or the DRM servers for their ill-fated music store or will be doing with Games for Windows Live later this year. But people couldn’t possibly have been objecting to those egregious parts of the plan, oh no.

  34. Emeraude says:

    And I was merely pointing out that the assertion is still 100% valid.

    The “if you can resell the physical component, you can resell the license” bit ?

    If so, again, no. For the very reason of the license change.

  35. DrManhatten says:

    Well what do you expect from The Krauts they have one of the most pathetic political leaders in history.

  36. Cloneintle says:

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  37. Wisq says:

    (reply fail, oops)

  38. lomaxgnome says:

    Selling individual games is far less important (and necessary) than the right to sell (and inherit) full accounts. I should have the right to transfer my account to another person, whether it is Steam, iTunes, or any other service and currently that right is not in place. All being able to sell individual games would mean is the death of Steam sales and the rise of an unneeded secondhand pc game market.

  39. DonQuigleone says:

    You know, when you buy a ticket to Disney World that entitles you to a year’s worth of unlimited free attendance, you also agree that the ticket is non-transferable. Same goes for any other theme park.

    Couldn’t the same thing be said for Computer Games, that you’re simply buying access to a virtual theme park, and not an actual product?

    No one would argue that a ticket to a theme park is an actual physical product. And it’s not just theme parks that operate under that logic. If you rented someone accomodation (or even granted them a years access for a single up front charge), you can stipulate whether or not they can sublet the rooms, as you allowed that person to rent, not that person’s violent friend who has a penchant for punching holes in walls.

    It seems pretty sound legally, because no one has ever owned software, they’ve only ever owned access, and like the ownership of access to your house, or a theme park, they can choose whether or not you can transfer that access right.

    • Emeraude says:

      Couldn’t the same thing be said for Computer Games, that you’re simply buying access to a virtual theme park, and not an actual product?

      That’s the thing though, the Court of Justice of the European Union stated that, no, you cannot say the same thing.

      I’m really waiting on friends fluent in German legalese to explain me that one, because so far it makes little sense.

      • Wisq says:

        I’m curious if they would have said the same thing had computer games always been a digital good and never been a real, physical product.

        It’s been my impression that for the most part, judges and lawyers are still a generation behind, arguing over laws that are several more behind.

        • Emeraude says:

          In my experience, people working in the tech side of things severely underestimate judges and lawyer’s understanding of the legal and social ramifications of new technology simply because they’re seen as old. Weird case of gerontophobia.

          Hell, some of the issues just now raised by new technologies were already being discussed more than a century ago by people debating the issues of intellectual property as hypothetical situations to take in account (having read some pages of Victor Hugo recently on the matter, I must say I was thoroughly impressed really).

  40. Deano2099 says:

    Article a bit harsh on Valve? Sure, they have the technology to do it, but they can’t just suddenly decide to do it. I’m almost positive it would break the agreements they have with publishers and developers. They’re the people holding this back, not Valve.

    Valve fought the ruling as, if it passed, they’d be forced to remove 95% of their games library from sale in Germany, effectively shutting them down in that country.

  41. oxykottin says:

    If this was passed talk about putting a dagger in to single player only games. The only way you could stay profitable would be with an online registration method.

  42. hotmaildidntwork says:

    What does it say about us as a species that upon developing a manufacturing method that permits near-infinite reproduction and distribution of a product at near-zero cost using readily available equipment we immediately make up a bunch of rules to prevent anything from changing too much?

    • Wisq says:

      An unfortunate consequence of the internet being driven by commercial interests. Commerce relies on scarcity, so in order to make physical money, you have to make your digital goods artificially scarce.

      Think how far the internet got when it was being run by academics and hobbyists. It was only when commercial interests took notice that things started to really pick up. This is also why it’s not sufficient to just forcibly eliminate digital scarcity (e.g. via piracy), because then you risk just losing that commercial interest and having nothing new to share.

      Our only real hope to solving the artificial digital scarcity problem is to eliminate scarcity in the physical world, either by freely and easily providing us with everything we need to survive and be comfortable, or simply eliminating our physical selves and becoming purely digital. Once people no longer need to transform their digital goods into physical money to feed and house themselves, natural digital economy can take over.

      • Emeraude says:

        Think how far the internet got when it was being run by academics and hobbyists.

        I generally try not to. it depresses me

        • Wisq says:

          That’s not comparing it to the academic/hobbyist internet, though. That’s comparing it to the somewhat-less-commercialised web of five years ago. There had already been advances at that time (particularly in the backbone itself) that never would have happened if it were left up to acamedic and government organisations.

          Plus, half of those are just “we had this technology but it didn’t scale”. And the Google AdSense one ignores the number of free services we get today that are all fully ad-supported (like, almost everything we use daily).

          The internet I’m talking about was the one built on Gopher and telnet and very basic HTML. The one where it was frequent and normal to lose contact with large portions of the world or even your own country because some line went down or some route was wrong. The times where it was common to run a traceroute to see what was wrong, and common then to see that some pair of major internet backbone gateways were just infinitely looping between each other.

          Today, I can (say) sit down in any urban space, wirelessly link my laptop to my cell phone, and stream 720p video directly from my home. Or manage my company’s servers. Or remotely connect in and fix my grandfather’s computer. This is the crazy world we live in now.

          • Emeraude says:

            Way to miss the point. Technology has gotten better. Underlying principles have changed. Many of us think for the worse.

          • Wisq says:

            Well, I was responding to what I felt was you missing the point to my own comment, so I suppose we’re even in that regard. :)

            Frankly, I like where the internet is these days. It’s not perfect, but it’s far better than it has been at any point in the past, in my opinion. Technologically, it’s amazing. Socially, it has its blemishes (e.g. Facebook, 4chan) but is still largely positive IMO. Commercially, you can get almost anything you could ever need online, and get it delivered within a few days, sometimes within 24 hours. And politically, we’re continuing to use it to hold companies and governments accountable for their decisions. (Heck, I work with a lawyer who, as a law student, managed to get Facebook to improve their privacy settings by bringing the Canadian Privacy Commission down on them.)

          • Emeraude says:

            Dialogue de sourds, as we say.

  43. Nuclear Pony says:

    I’m kind of surprised at how people seem to react to this. Suddenly owning a piece of software is supposed to be a meaningful concept and artificially enforcing individual copies is fine as long as I’m the one getting the money. Surely you weren’t saying this on the bazillion other threads about copyright/piracy/drm. Double standards much ?

    So make up your mind people. Either digital content deserves to be treated the same as physical goods, in which case we need measures taken to ensure each copy is unique, indentifiable, and non-reproducible, so as to mimic a physical object (which most likely imply intrusive DRM), and piracy is condamned in the exact same way as theft, or we can face the reality that digital content lives in an entirely different world, and sit down and make up a new set of rules for it, which may or may not include the possibility of second-hand software.

    Should Steam allow this ? I seriously dont even have an opinion on it. Why not ? It does look pretty handy, yet on the other hand, the actual system doesn’t bother me that much.

    So for the love of god people, have whatever opinion you’re having, but try to have a healthy and hypocrisy-free debate considering both party interest, and not simply a self-righteous “As a consumer, I’m unalienably entitled to this right because we happened to do it that way for physical goods”. Because in that case, companies are likewise entitled to sue you the second you copy your game on another drive.

    Not acknowledging the basic fact that we can’t systematically apply the old consumer laws to the digital world seems incredibly short-sighted to me.

    • Emeraude says:

      “As a consumer, I’m unalienably entitled to this right because we happened to do it that way for physical goods”. Because in that case, companies are likewise entitled to sue you the second you copy your game on another drive.

      Taking that argument to its absurd logical end: alternatively, citizens are entitled to get rid of the intellectual property rights they granted to those companies altogether.

  44. Fiesbert says:

    Its funny how game developers suddenly can’t earny money if their products are resellable while book authors do well under exactly those conditions.
    Another funny thing is how people always assume the mones goes directly to the developer. Publishers contract studios to develop content and take a huge chunk of the money.
    This picture of the poor artist not making any money bacuse you sell used games is so incredibly naive and stupid.

  45. Emeraude says:

    Edit; I really must have some script issues…

  46. Darth Gangrel says:

    This is quite an interesting topic and I’ve read many convincing comments that are for or against this. Like any discussion I’ve been part of or read/heard about, I feel that I’m no closer to an answer than I was before, but it was good while it lasted.

    For me this is currently a non-issue, because I never buy games that I would be done with in the near future. Mods will only prolong the shelf-life of a game and I always look for games with great mods. Near infinite replayability has been a requirement before I buy any game, even before I got more games than I could handle and less money than convenient.

    With the amassing of a backlog, this has only been compounded, so that with each new game I have to justify growing my backlog even more. The selection of potential purchases becomes increasingly narrow as the backlog grows and it’s now at a point where I don’t find any reason to buy any game at any price. I could play games for years and not completely dig through my backlog, which also makes piracy pointless, even if I wasn’t already completely against that.

  47. Janek_Slav says:

    Look people quite simple: You get a game on steam.You don’t like it what reason you have you want to sell it.

    You right click on the game in your library click repackage game.

    Now you cant play the game as it is repackaged just like it works in Eve Online.

    Now you can sell it. Now how the selling will go that is up to Valve and the gaming industry.

    I remember selling my games for reduced price…..

    When you repackage a game it deletes the old cd key/game key and you cant use it sure you can copy the game files and bla bla get a crack hell you can do it now with about 99.9% i mean 100% of games on the market so it has nothing to do with this CASE of why can’t i sell my game?Because it just does not make sense why.

    Now I said it here i will keep saying it and im actually boycotting the gaming market until it adapts to the customers well in general to technology just like our old crumbling economy that cant adapt to technology.

    Anyway i know there be hatters to fanatics say this that it cant be done it help piracy bla bla but i think any logical rational person clearly see’s this would just help the gaming market the producers and its consumers.

    Once the game is sold if to another customer at full price tag but the seller gets reduced price for selling it the company gains profit Valve gets profit customer is happy in the end everyone wins!

    GG
    -Janek

    PS: This topic reminds me of the Car industry kind of. ^-^