Microsoft made the announcement on its blog, trying to reassure customers that they’ll be able to share games and also trade them in for other used games, just like it’s always been in the past.
But the way things are written in the announcement show the lengths to which Microsoft is trying to hide the anti-consumer policies it is putting into place.
On the topic of trading in and reselling games, Microsoft writes, “We designed Xbox One so game publishers can enable you to trade in your games at participating retailers.”
What exactly does that mean? It seems to indicate that the publisher determines whether or not a game is re-sellable. Which is probably why Microsoft leaves out this gem from the bullet point and puts it later in the story: “Third party publishers may opt in or out of supporting game resale and may set up business terms or transfer fees with retailers.”
So yes, companies like EA and Ubisoft will be deciding whether or not you have the right to resell a game, which would seem to fly in the face of the doctrine of First Sale, which effectively gives the rightful purchaser of a copyrighted product the right to sell it whomever she wants without having to consult the original seller or publisher.
Makers of digital goods like apps and streaming audio/video maintain that First Sale doesn’t apply because you’re not actually purchasing a good, but simply paying for a license to use that software. If developers move to severely limit resale of games, I wouldn’t be surprised if consumers and smaller retailers both pursued legal action to clarify this matter.
And what constitutes a “participating retailer”? Right now, I can buy and sell used Xbox 360 games with anyone I wish. This seems to hint at a distinct program that would limit who has the ability to make these games available for resale.
I CAN’T EVEN GIVE THIS GAME AWAY
Another situation that’s quite common — and long protected by law — is simply giving someone your old game. Example: I got bored and motion-sick five minutes into the latest Tomb Raider game, so I gave it to a friend who wanted to try it for herself. Perfectly legitimate thing to do. But not so under the new Xbox One regime.
Yes, the new console allows you to share games stored on your device with a limited list of “family” members, but if you just want to hand off that disc and never see it again, there are some hardline restrictions.
“You can only give them to people who have been on your friends list for at least 30 days and each game can only be given once,” writes Microsoft.
So if you want to give some old or undesirable game to a neighbor down the street, you have to friend him on Xbox Live, then wait 30 days… and tell him he’s stuck with the game forever.
Again, this is in direct contradiction to longstanding legal precedent that says if I buy a product, it’s mine to do with as I please. And if I sell it, then the person who buys it from me can do as she pleases. Can you imagine Nike telling you that you can only give away your new sneakers to someone with whom you’ve publicly registered as a friend, and that this person can’t ever give those shoes to anyone else?
Oh, and there’s another non-bullet-pointed gem hidden later in the announcement: “Loaning or renting games won’t be available at launch, but we are exploring the possibilities with our partners.”
Once more, stripping away now-common — and completely legal — practices among the gaming and retail community.
We understand that we live in a digital era where a copy of a video game is completely identical to the original and where this content will not degrade over time and with use, unlike the aforementioned sneakers. The notion of “ownership” of digital goods is still in its infancy and most copyright law is still stuck in the days of hand-operated printing presses, but it seems like Microsoft may be using the “things are different now” argument to justify discarding some of the foundations of our entire retail system and culture.
The company would have a better argument if it had gone disc-free for the Xbox One, but the decision to continue with disc-based games looks to our non-lawyer eyes like the same tenets of First Sale would apply, at least to customers who purchase games on disc.
You can tell that Microsoft knows these new conditions are going to be greeted with derision, as it repeatedly makes mention of how it is not directly profiting off any of the fees that game makers might charge for trading-in and reselling games. This is a neat trick by Microsoft to shunt any future blame away from itself and onto publishers, telling consumers they’ll have to take it up with a third-party if they have a complaint.