It's an open secret that publishers and developers would love to do away with used game sales. Retailers and many consumers, of course, favor the availability of used games. The big stink a few weeks ago when a report surfaced that Sony would restrict used PlayStation 3 game sales demonstrated clearly how seriously both sides feel.
But what about the licenses that are already attached to videogame software? If taken seriously, I wonder if they might not already restrict what consumers can do in ways they don't realize.
So, again: Have you actually read the license for Grand Theft Auto: San Andreas for the PlayStation 2?
Here are the first four paragraphs of that license, for completeness. Judging from the language, this reproduction itself is probably a violation of the license. I've highlighted the parts of interest to me, for easier reading.
To summarize:LIMITED SOFTWARE WARRANTY AND LICENSE AGREEMENT
YOUR USE OF THIS SOFTWARE IS SUBJECT TO THIS LIMITED SOFTWARE WARRANTY AND LICENSE AGREEMENT (THE" AGREEMENT") AND THE TERMS SET FORTH BELOW. THE "SOFTWARE" INCLUDES ALL SOFTWARE INCLUDED WITH THIS AGREEMENT, THE ACCOMPANYING MANUAL(S), PACKAGING AND OTHER WRITTEN, ELECTRONIC OR ON-LINE MATERIALS OR DOCUMENTATION, AND ANY AND ALL COPIES OF SUCH SOFTWARE AND ITS MATERIALS. BY OPENING THE SOFTWARE, INSTALLING, AND/OR USING THE SOFTWARE AND ANY OTHER MATERIALS INCLUDED WITH THE SOFTWARE, YOU HEREBY ACCEPT THE TERMS OF THIS LICENSE WITH ROCKSTAR GAMES, INC. ("LICENSOR").
LICENSE: Subject to this Agreement and its terms and conditions, LICENSOR hereby grants you the non-exclusive, non-transferable, limited right and license to use one copy of the Software for your personal use on a single home or portable computer. The Software is being licensed to you and you hereby acknowledge that no title or ownership in the Software is being transferred or assigned and this Agreement should not be construed as a sale of any rights in the Software. All rights not specifically granted under this Agreement are reserved by LICENSOR and, as applicable, its licensors.
OWNERSHIP: LICENSOR retains all rights, title and interest to this Software, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sounds effects [sic], musical works, and moral rights. The Software is protected by United States copyright law and applicable copyright laws and treaties throughout the world. The Software may not be copied, reproduced or distributed in any manner or medium, in whole or in part, without prior written consent from LICENSOR. Any persons copying, reproducing or distributing all or any part of the Software in any manner or medium, will be willfully violating the copyright laws and may be subject to civil and criminal penalties. Be advised that Copyright violations are subject to penalties of up to $100,000 per violation. The Software contains certain licensed materials and LICENSOR's licensors may protect their rights in the event of any violation of this Agreement.
You agree not to:
Commercially exploit the Software; Distribute, lease, license, sell, rent or otherwise transfer or assign this Software, or any copies of this Software, without the express prior written consent of LICENSOR; Make copies of the software or any part thereof, except for back up or archival purposes; Except as otherwise specifically provided by the Software or this Agreement, use or install the Software (or permit others to do same) on a network, for on-line use, or on more than one computer, computer terminal, or workstation at the same time; Copy the Software onto a hard drive or other storage device and must run the software from the included CD-ROM (although the Software may automatically copy a portion of itself onto your hard drive during installation in order to run more efficiently); use or copy the Software at a computer gaming center or any other location-based site; provided, that LICENSOR may offer you a separate site license agreement to make the Software available for commercial use; Reverse engineer, decompile, disassemble or otherwise modify the Software, in whole or in part; Remove or modify any proprietary notices or labels contained on or within the Software; and transport, export, or re-export (directly or indirectly) into any country forbidden to receive such Software by any U.S. export laws or accompanying regulations or otherwise violate such laws or regulations, that may be amended from time to time.
By opening the game, you've agreed to the terms of this license you couldn't read beforehand. You can only use it on a computer (uh...PlayStation 2) and you can't copy any little bit of it without obtaining prior written consent. If you screw up, you could be subject to big scary fines! You have also agreed not to sell the software, not to make anything more than a backup copy, not to copy any bit to a hard drive, not use it at a gaming cafe, and not to modify it.I really don't like licenses I can't read beforehand. They're despicable. And a license that doesn't even sound like it's written for the software I've bought (didn't we just find out a PlayStation isn't a computer?) surely doesn't instill much confidence in the legal eagles putting it together. Does this license override my fair use rights? Or could Rockstar really fine me big moolah for, say, a screenshot? Not that they would, I suppose, but I'm not terribly comfortable with them forcing a situation where I give up fair use rights.
If I'm not allowed to sell the software, does that mean I can't sell my used copy of San Andreas? Or is this some other meaning of sell the software that isn't the usual meaning that we normals use?
And it appears that using San Andreas with something like the HD Loader is illegal, since you can't copy any of the game onto a hard drive. Understandable, I suppose, but why rule out gaming cafes? Seems like a pretty natural way to get people interested in buying their own copy of the game.
Finally, isn't that last bit about no modifications contrary to the tradition of previous GTA games? I thought modification was not just permitted, but downright encouraged. Why have a license that clearly prohibits it? Granted, this is my Hot-Coffee-enabled PlayStation 2 copy, but I bet the Windows version says something similar in the license.
Anyway, next time you want to get angry at Sony for what they might do, perhaps just read an existing game's license to get an idea of what publishers are already doing.
There's a good chance that that license is unenforceable, or a solid case could be made for it being so. There is no chance to read to it before hand, and the only easy and accessible way to read it binds you to the license.
There's at least one case that was settled in the user's favor: http://www.out-law.com/page-1790
gaming cafe clauses are huge, the amount of pirates materials at those places is just tremendous until the place gets cracked down. Iirc valve had huge problems with cs and whatnot. Since generally these places have kids that can't afford or don't want to maintain good pc rigs, they aren't even going to buy copies of the game.
The gaming cafe clause, you'll notice, offers up the possibility of getting a separate "commercial use license". This is essentially like the videos Blockbuster buys, which they have to pay more for since they'll be renting them.
In general, I hate EULAs with a deep and abiding passion. But aside from my general hatred, only a couple things particularly raise my ire about this one. First, the clause about selling/transferring, which is probably legal CYA in case a gaming cafe comes up with a "lending" scheme, but throws out the First Sale Doctrine baby with the bathwater. Second, EULAs that appear to claim "by being in a position to read this, you've agreed to it!" are the most reprehensible, although thankfully the least enforceable. (Technically, this EULA seems to say that if you opened the packaging, read the EULA, and didn't actually put the disc in the drive, you haven't "opened the software", and thus haven't agreed to the EULA, but it doesn't go out of its way to make this clear.)
The other stuff jvm brings up (not allowing copying except for backups, requiring a special license for commercial cafe-type uses, not allowing modifying, warning of big fines, and not permitting anything but use on a computer) are mostly delineation of the permissions the copyright holder is offering, and not particularly offensive, compared to other EULAs and other copyright claims.
I'm not saying I like them, but I'm saying there are much more important fish to fry as far as EULAs go.