US Court Decision Leaves Possible Implications for Used Game Sales

A California court has upheld a software developer’s right to prevent re-sale of its products, which could leave precedent for videogame companies to use the decision to prevent used game sales.

The California Ninth Circuit has ruled that Autodesk, the developer of modelling software AutoCAD, has the right to deny its users the re-selling its software. This comes after an eBay user, Timothy Vernor, attempted to re-sell a copy of the software on the online auction site that he had bought in an architect’s office sale. Vernor filed suit in 2008 when his eBay account was due to be banned because of these practices and won the case. Autodesk subsequently appealed, leading to this court’s ruling.

Vernor listed them apparently unused, with the full license key and claimed that because he had not agreed to the license (by not using the product), he did not have to adhere to the EULA (End User License Agreement). Autodesk claims (and this was upheld by the most recent court) that users of its software cannot re-sell it because they have simply agreed to license the product, a license which is non-transferable; meaning that customers don’t actually “own” a copy of the software. They said that the copies Vernor bought should have been destroyed by the previous owners.

The judge said: “We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.”

For videogames and indeed any digital product, this means that if publishers added similar text to its EULA then in the US at least, the re-selling of videogames could become difficult. Gamasutra points out that the Electronic Arts EULA already features: “This Software is licensed to you, not sold.” The question is whether videogame companies will pursue this course of action, especially considering their recent rhetoric against used game sales. Some have implemented single-use codes that unlock previously included feature such as multiplayer to promote buying new.