Are Used Video Games Theft?

Heavy Rain

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According to the French game developer Quantic Dream, the company has lost  between €5m and €10m due to the selling of used copies of its game Heavy Rain. This estimate was calculated by matching the sales figures of new games with the number of players registering Trophies on PSN. The company’s co-founder Guillame de Fondaumiere summed the matter up by saying, “on my small level it’s a million people playing my game without giving me one cent.”

While de Fondaumiere is not actually accusing buyers of used games of being involved in an act of thievery, the parallel to piracy seems to be an apt one to draw. After all, one stock argument against the digital  piracy of video games is that the piracy is costing the companies money via lost sales. However, the people who buy (and sell) used copies are clearly not engaging in piracy: the buying and selling of used property is well established and the burden of proof rests on those who would argue that the owner of a piece of physical property (in this sort of case, a game disk) cannot re-sell his used property. To use the obvious analogy, if I buy a house, then I have the right to resell it again. Imagine, if you will, a developer complaining that he is not getting a cut every time the house he sold is re-sold. Obviously, they would like such a cut. But, when it is sold, it is sold and the right to re-sell it goes along with the purchase (unless specified in the contract).  To use another analogy, when I do my job, I do not expect to be endlessly paid for the work I did (even when my students use what I taught in their careers)-I get paid for it and that is the end of it.

The matter become a bit less clear in cases of digital purchases, but Fondaumiere is discussing the re-selling of the actual games disks. As such, there seems to little foundation for his complaint, other than the fact that he is worried he is not getting every cent he thinks he is owed.

One obvious factor worth considering is that the reselling of a used game does not entail that a sale is lost. As a gamer, I can attest that there are games that I have bought used that I would not have bought new. As such, calculating the “loss” from used game sales would be somewhat tricky.

A second factor is that gamers sometimes wait for the price to drop on a game. For example, I bought Borderlands when the Game of the Year edition came out (with all the expansions included). It was much cheaper than the original version, yet it would be odd to say that my delay robbed the company (they did, of course, get some money from me).

A third factor is that when gamers buy games, they often factor in the fact that they can resell the game or pass it on to someone. Laying out $60 for a game is more palatable when you know that you’ll get some of that back or that you can give it to someone. While it is difficult to calculate the positive sales impact of the ability to re-sell or give away games, it would seem to be a factor worth considering. As such, the re-selling of games might not be a losing proposition for game companies. At the very least, this factor would mitigate any harms done by the reselling.

A fourth factor is that gaming stores generate significant income from re-selling used games (often over and over). While this has also been a point of contention, it does help retailers stay in business and thus be available to sell new copies of games.

However, de Fondaumiere  contends that the retailers will ultimately hurt themselves by selling used games. He asserts that game companies will think that they cannot make money via retail and will instead go to direct online distribution (which is already an option for many games), thus eliminating the retail game sellers by removing their access to products. From the perspective of retailers, this would be rather bad-after all, many retailers make their main profits from selling (and re-selling) used games. It is, of course, worth noting that the used record and CD retail industry took a severe hit with the advent of the digital revolution. The same could very well happen to the gaming world. While I have bought games via Amazon, it has been years since I bought a game at an actual physical store and I often buy download versions of PC games.  This trend might solve the problem of used games, at least how he sees it. Of course, this might also lead consumers to be more reluctant to purchase games on release-after all, being unable to sell them back or give them away does reduce their value for some customers.

My considered view is that the selling of used games is acceptable and companies have little grounds on which to complain of such losses.

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  1. Wow, new selling used games is Theft? These people are incredible, wow … I’m angry.

  2. Mike, I agree with your analysis and regard this tactic as one developers would like to employ to get their hands on more of our money.

    But what is your reaction to “art resale royalty schemes”, such as the one recently introduced by the Australian Government?

    The artists’ resale royalty scheme started on 9 June 2010.
    Under the scheme:
    commercial resales of artworks must be reported; and
    a 5% royalty is payable on some resales.
    The Australian government appointed Copyright Agency Limited (CAL) to manage the scheme.

    Key features of the scheme:
    it applies to resales of existing as well as new works;
    it applies to a range of original artworks, included limited edition prints authorised by the artist;
    it does not apply to a private sale from one individual to another;
    a royalty is not payable on the first change of hands after 9 June, but all resales must be reported;
    a royalty is not payable on resales for under $1,000;
    the scheme will be extended to artworks from countries that have similar schemes.

  3. If I have purchased something in good faith how can it be ethically wrong for me to sell it on in good faith, after use?

  4. Is the sale of used video games, theft? - Quora - pingback on September 16, 2011 at 10:11 pm
  5. I’d better clear my least 50% of them are second hand books.

  6. Kieth
    I am a successful mid career Australian artist, Resale Royalties are not a good thing for living artists who make and sell art for a living. It is not artists who make and sell art for a living That lobbied for this scheme.

    The lobbyists for resale royalties worldwide are always those who would be well paid to manage their scheme and their closely intertwined artist guilds that hope to get the money collected that is ‘undeliverable’ (to the actual right holder) to redistribute to their cronies. Rent seeking, moral hazard and conflict of interest is the intrinsic to the core of the scheme.

    I ask you to read this post of ours that Professor Jeremy Philips kindly placed on his 1709 copyright blog:

  7. Hi John

    Thanks for that. Very, very interesting. I had questions about the scheme when it was first proposed. You have answered many of those questions.

  8. Dmitri Pisartchik

    The argument advanced by de Fondaumiere reduces to absurdity. After the game disk is sold to me, I become its exclusive owner, it is my property. And if private property is to mean anything at all coherent, then I am at liberty to dispose of it as I see fit (within legal and ethical limits).

    de Fondaumiere’s ownership, or any game developer’s ownership, extends to intellectual property that comes with the game, not physical ownership. He has a legitimate claim against my making use of the technology that makes up the game, but that is all.

    If his argument was sound, then I would be prohibited from reselling or trading in anything that I now own but that was made by someone else, an absurd and unpalatable conclusion.

  9. Although the gaming companies aren’t making any money from the sale of used games. They are getting advertisement from the people who buy them if they decide to tell there friends or mabye an online community.

  10. Crazy to relate it to stealing. What about buying or selling a car. Clearly the only one stealing in that situation would be Ford when they charge you for repairs. The publishers have come up with a way to make back their “lost” sales anyways. They are now charging to get online for some games if you buy a used copy. The new ones come with the online code, but if you buy a used copy you have to pay $5-10 for the code. They always find a way to get their money back.

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