First, Microsoft announced that the upcoming Xbox One gaming console would severely restrict a user’s ability to resell games or play previously owned titles. Then Sony announced that its competing PS4 wouldn’t have any new restrictions, and Microsoft was basically forced to give them up. But that hasn’t stopped some consumers from being justifiably concerned that, once Xbox One has garnered a substantial user base, Microsoft will pull an about-face and institute the harsh digital rights management programs it had intended.

In an attempt to allay those concerns, the company’s Director of Product Planning responded to gamers on NeoGAF:

I don’t want to open up an entirely new issue here, but here’s my shot. I don’t see that ever happening with content you’re buying today either on disc and digitally. All of that DRM stuff was in place because there was no physical security on the disc itself, so all the licensing was done digitally. When you build that type of model, then you need to make sure people can’t install games on a bunch of machines, then unplug them. That would have made us an awesome Pirating machine, and that can’t happen for obvious reasons.

When we went back to disc security, those DRM policies weren’t necessary. So no reason to turn it on later.

If there’s ambiguity, it’s because it’s possible that, in the future, IF WE ADDED BACK some of those family sharing ideas we had in the beginning, we’d have [to] reintroduce similar types of policies. So IF you wanted to have a game and have that family sharing, always-in-the-cloud, and digital loaning – then we might add those requirements back. You can imagine a world where we have both types of models at the same time.

Again, big IF, but the bottom line is I wouldn’t worry about us making those policies “retroactive” which seems to be the issue I hear people worry about.

Basically, he’s saying that people who continue to purchase and use disc-based games will not have to worry about being told they can’t resell those games or give them away, both of which would have been severely limited by the original plan.

It’s that still-gray area of purely digital content — games purchased online, stored on the cloud — where Microsoft will possibly try to experiment with some of the rights management programs it had hoped to institute.

Microsoft would likely have faced a legal challenge from consumers and retailers had it went ahead with its plans to limit customers’ ability to resell disc-based games, as the Doctrine of First Sale effectively gives the consumer the right to do what he pleases with his purchases. By contrast, digital content is often not “purchased,” but is actually licensed by the end-user. In order to make that purchase, the user typically has to sign off on an agreement that puts limitations on things like reselling.

Had Microsoft chosen to do download/cloud only for the Xbox One, there might not have been such a backlash from consumers, many of whom are now used to things like streaming video and music that can’t be resold or given away (at least not legally). In fact, a number of gamers were upset by the company’s decision to do away with the new game-sharing features that were initially introduced.

It seems inevitable that the next next-generation gaming technology will do away with discs entirely, meaning some of the lingering questions about who owns what and who can resell what to whom will eventually need to be resolved. Retailers like Amazon, Best Buy, GameStop and Walmart stand to lose out on mountains of cash if Xbox and PlayStation users are all getting their games directly from Microsoft and Sony stores, so they, along with gamers, will most certainly push for the creation of some sort of secondary digital marketplace where consumers can resell games legally.

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