Last night, Sony delivered a mammoth kick to Microsoft’s rear-end when it announced that the upcoming PS4 would not put any restrictions on how users share games for the new console. But this is obviously too good to be true 100% of the time, and now Sony is having to clarify what it meant.
In an interview with Game Trailers, Sony America CEO Jack Tretton clarified that the guaranteed no-DRM (digital rights management) thing will only definitely apply to Sony-produced games, while restrictions could be placed on third-party produced games by publishers.
“Well, I mean, we create the platform, we’ve certainly stated that our first-party games are not going to be doing that, but we welcome publishers and their business models to our platform,” explained Tretton. “There’s gonna be free-to-play, there’s gonna be every potential business model on there, and again, that’s up to their relationship with the consumer, what do they think is going to put them in the best fit. We’re not going to dictate that, we’re gonna give them a platform to publish on… The DRM decision is going to have to be answered by the third parties, it’s not something we’re going to control, or dictate, or mandate, or implement.”
Now we don’t take this to mean that third-party publishers can tell you whether or not you can sell your disc at GameStop or give it to a friend. Instead, it seems to be an acknowledgement that some developers might come up with systems intended to curb that reselling, or to generate more revenue from buyers of used games.
For example, Electronic Arts had until recently been using a system called Online Pass that gave buyers of new games access to online multiplayer content. If someone purchased the game used, they would have to pay for an Online Pass. EA recently decided to get rid of that program, citing consumer backlash, but it’s possible that publishers will create some variation on this kind of program going forward.
As Polygon points out, this is all really no different from what users experience on the current generation of consoles, and similar to how publishers of PC games have handled things — the device itself does nothing to stop you from reselling, but the publisher could choose to make the software more difficult (or less appealing) to resell.
Meanwhile, the Xbox One allows publishers to determine whether or not the game can be resold, and to whom. The system also puts severe limits on to whom a game can be given (must be someone who has been on your friends list for at least 30 days), and the number of times it can be passed on (once).
It’s worth mentioning again that Sony’s policy of being able to resell, trade, or give away games likely only refers to disc-based titles, and not to downloaded games. Disc-based games have historically been considered to fall under the doctrine of First Sale, which gives the purchaser of a copyrighted work the ability to do with it whatever he wishes after it’s been bought. Meanwhile, downloaded media content is often viewed through a different lens, with consumers considered “licensees” who agree to terms with the publisher that generally forbid reselling.
The problem is that disc-based games are quickly becoming little more than keys to online content, which some publishers contend blurs the rights of the consumer under the First Sale doctrine. As downloaded and streamed content becomes the norm, we expect there will be numerous legal and legislative battles to determine who actually owns the games, movies, music, and ebooks we pay for.