Game Consumers Win in Federal Court's "First Sale" Ruling
Game Consumers Win in Federal Court's "First Sale" Ruling
June 13, 2008
Wired's Threat Level blog dishes on a U.S. District Court judge's ruling that promotional music CD's are owned by the person they were given to not the record company that distributed them.
The case surfaced when UMG Recordings sued a California man for selling promo CDs on Ebay. However, Judge James Otero ruled against the company, writing:
UMG's distribution of promo CDs provides the recipient with many critical rights of ownership, including the right to perpetual possession and the freedom from obligations to UMG... [Distributing the promo CDs] is properly characterized as a gift or sale, not a license, and title to the CDs transferred [to the recipient].
Lawyer-gamer Mark Methenitis offers some legal insight on his Law of the Game blog:
The victor here is clearly the consumer. This means that if you get your hands on a promotional CD, DVD, or game, even one labeled not for resale, you can keep it or sell it on eBay without worry about repercussions from the game's publisher. More importantly, it prevents an expansion of the first sale doctrine, which could have limited your ability to resell games you've purchased at all. Game resellers, both those on eBay and the major retail chains, should be applauding this decision as it supports their livelihood.
Corinne McSherry of the Electronic Frontier Foundation told Wired that the ruling has many beneficiaries:
This is a very important ruling for consumers, and not just those who buy or sell used CDs. The right of first sale also protects libraries, used bookstores, and businesses that rent movies and videogames.
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LOGINGamePolitics ShoutBox
Posted 01/05/09 at 10:09pm
Neeneko: Heh. Trying to simplify the israely/palistinaint conflict into shout boxes.....
Neeneko: Heh. Trying to simplify the israely/palistinaint conflict into shout boxes.....
Posted 01/05/09 at 10:02pm
Derovius: How is Hamas a rebel faction? Its their government. The Israeli's laided claim to land thats not theirs, and shooting ensued. If Mexico marched its army across the border into the US, said "Nice land, I'll take it", how fast would the US start shooting?
Derovius: How is Hamas a rebel faction? Its their government. The Israeli's laided claim to land thats not theirs, and shooting ensued. If Mexico marched its army across the border into the US, said "Nice land, I'll take it", how fast would the US start shooting?
Posted 01/05/09 at 09:51pm
Austin_Lewis: Israel has been 'taking it' for 20 years, at least a rocket or mortar everyday.
Austin_Lewis: Israel has been 'taking it' for 20 years, at least a rocket or mortar everyday.
Posted 01/05/09 at 09:18pm
JustChris: Army of a sovereign nation versus smallish rebel groups, and people are complaining that the former is utterly destroying the latter? Don't bring it if you can't take it.
JustChris: Army of a sovereign nation versus smallish rebel groups, and people are complaining that the former is utterly destroying the latter? Don't bring it if you can't take it.
Posted 01/05/09 at 08:28pm
JDKJ: @SDD: Fair enough.
JDKJ: @SDD: Fair enough.
Posted 01/05/09 at 07:17pm
Austin_Lewis: @Zippy: 1) Way too many gundam shows. 2) I don't care about the rest, just Hamas in palestine.
Austin_Lewis: @Zippy: 1) Way too many gundam shows. 2) I don't care about the rest, just Hamas in palestine.
Posted 01/05/09 at 07:15pm
ZippyDSMlee: Austin_Lewis:You should enjoy Gundam00 themid east antions are getting wiped out one by one.
ZippyDSMlee: Austin_Lewis:You should enjoy Gundam00 themid east antions are getting wiped out one by one.
Posted 01/05/09 at 07:06pm
Shadow D. Darkman: @JDKJ: Sorry, but I'm not in this.
Shadow D. Darkman: @JDKJ: Sorry, but I'm not in this.
Posted 01/05/09 at 06:40pm
JDKJ: This is one of those weird cases where I'm actually hoping that Shadow will appear, face in palm.
JDKJ: This is one of those weird cases where I'm actually hoping that Shadow will appear, face in palm.
Posted 01/05/09 at 04:58pm
Austin_Lewis: Actually, I hate hamas. Mainly because, you know, they're dicks. Of course, if you want to hang out with terrorists, go for it
Austin_Lewis: Actually, I hate hamas. Mainly because, you know, they're dicks. Of course, if you want to hang out with terrorists, go for it
Posted 01/05/09 at 04:57pm
Derovius: Well, according to your response you only hate Muslims. So instead being an utter douchebag, you're only a complete douchebag.
Derovius: Well, according to your response you only hate Muslims. So instead being an utter douchebag, you're only a complete douchebag.
Posted 01/05/09 at 04:53pm
Austin_Lewis: Of course, I enjoy your suggestion that I hate Jews AND Muslims.
Austin_Lewis: Of course, I enjoy your suggestion that I hate Jews AND Muslims.
Posted 01/05/09 at 04:52pm
Austin_Lewis: Actually, I'm just glad to see the Palestinians getting a bit of pay back for 20 years of rockets into Israel everyday.
Austin_Lewis: Actually, I'm just glad to see the Palestinians getting a bit of pay back for 20 years of rockets into Israel everyday.
Posted 01/05/09 at 04:35pm
Derovius: You should be happy Lewis, the two groups of people you hate are killing each other.
Derovius: You should be happy Lewis, the two groups of people you hate are killing each other.
Posted 01/05/09 at 04:16pm
Austin_Lewis: Slow news day today, eh? Oh well, at least Palestine is getting pounded by Israel. Here's hoping for some real news tomorrow.
Austin_Lewis: Slow news day today, eh? Oh well, at least Palestine is getting pounded by Israel. Here's hoping for some real news tomorrow.
Posted 01/05/09 at 03:19pm
black manta: ...get on that one BTW. One of the characters is a naked blue man whose willy is very visible!
black manta: ...get on that one BTW. One of the characters is a naked blue man whose willy is very visible!
Posted 01/05/09 at 03:18pm
black manta: I said in one of my comments that Jack's lates filing has even less merit than Fox's dispute over The Watchmen. Jack should
black manta: I said in one of my comments that Jack's lates filing has even less merit than Fox's dispute over The Watchmen. Jack should
Posted 01/05/09 at 03:17pm
JDKJ: But at least it ain't like copyrighted material. It's 1000 times easier to rip off a copyright than it is a patent.
JDKJ: But at least it ain't like copyrighted material. It's 1000 times easier to rip off a copyright than it is a patent.
Posted 01/05/09 at 03:13pm
JDKJ: And the paper-pushers over at the USPO?
JDKJ: And the paper-pushers over at the USPO?
Posted 01/05/09 at 03:10pm
JDKJ: Because it keeps all the patent attorneys well-fed?
JDKJ: Because it keeps all the patent attorneys well-fed?
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Game Politics and Game Politics logo are trademarks of the ECA.
Game Politics and Game Politics logo are trademarks of the ECA.
Comments
FUCK YES, go EFF
Victory!
Maybe some compaines will realize that they're blowing this whole pirating/copyright thing out of proportion. I mean promo CDs? Come on, that's free publicity.
Those things are usually distributed with explicit or implied contractual obligations... I'm a little surprised UMG wouldn't have fought this under a breach of contract argument.
The downside, of course, is that the company usually gets no compensation for the distribution of the promotional material, so in effect the reseller is profiting from someone else's work product with no compensation to the creator. One thing that could happen as a result of this is that companies may start to cut out or severly limit the availability of promotional copies of games, movies, and CDs.
I would almost feel bad if they hadn't tried to claim that throwing a promo CD into the trash was was infringement.
The thing is that the court ruled that those promo cds wer a gift. They concluded that gifting a cd is the same as selling one and thus the first sale doctrine applies.
Have you ever heard the term "indian gift giver"? It is a crappy term and I am not sure what it's roots are, but the idea behind it is that a person who gives a gift and later wants it back is an indian gift giver. But under law, you cannot force someone to give a gift back.
E. Zachary Knight
www.editorialgames.com
I highly doubt promotional items will be cut back because of this ruling. The music labels know that promo items make them money. This case just shows that they believe the only ones who should make money off music are the music labels and no one else!
Before you cry foul on people selling promo items... Keep in mind those same people most likely purchase a mountain of CDs themselves along with posters, t-shirts, and other memorabilia.
-Loudspeaker
"Volume helps to get a point across but sharp teeth are better."
They aren't going to limit the numbers of promotional copies of stuff. Promotional copies are a drop in the ocean compared to the number of regular production copies they put out. This case was just them being money grubbing asses.
Any day that the RIAA loses is a good day.
They're appealing.
Should they win, each and every consumer needs to record something to CD (or better, cassette, it's harder to store) and send it to UMG. Then every month, ask for evidence that it is still in their possession.
Oh, and to put the cherry on top. If they store it on their network to maintain it, sue them for "making available" to the entirety of their business. God, irony is fun.
To be persuasive we must be believable; to be believable we must be credible; credible we must be truthful. Edward R. Murrow
I don't see how they could win on appeal. If you rule the other way then it sets a precident that anything gifted really isn't something you own. The gifter is still the owner. There are many bad legal precidents that sets. For instance, the non-profit organizations you can donate a car to. If you donated your car or gifted it to them then you'd still retain ownership. If someone then hit and killed someone with that car in my state YOU as the owner would be held just as responsible as the person driving the car. If a company gives you a free, complimentary gift for another purchase it would mean you really don't own it, your vendor does. So, then when that vendor declaires bankruptcy, that free, complimentary gift gets repossessed by your vendor.
The list of retarded precidents a ruling in the music label's favor creates just goes on and on.
-Loudspeaker
"Volume helps to get a point across but sharp teeth are better."
The key here for the rule is that the promo has to be unsolicited. That is what characterizes the item as a gift. If the requestor asks for a pre-release for a legitimate purpose (i.e. a review) then there is likely a contractual issue and it is not a gift. So the advice from Mr. Methenitis is not entirely true as they may have a claim for misuse or breach of contract.
Still good to see bullies get shut down though.
So if I purchase a PC game and the EULA says I'm not allowed to resell it or even give it to someone else as a gift, is that still in effect? Of course, most big-budget PC games these days have SecuROM, online validation, and other things that make that physically difficult to begin with.
As I'm given to recall, anything written in a EULA can't be legally enforced, because the buyer can't be forced into a contract after having already bought the prodcuct, or some such reason. I'm not certain on that though.
Yeah...um...EULAs are not enforcable in a court of law. Mostly because the customer has no way to negociate the terms and that they often have to agree to the terms beforethey even read them.
There is nothing that could legally prevent you from reselling your PC game other than stupid retailers worried about piracy.
E. Zachary Knight
www.editorialgames.com
All or part of a EULA might be enforceably in a court of law. It depends on the terms of the EULA and your jurisdiction. The case law is all over the place, but there have definitely been EULAs that have been legally enforced.
Even so, an EULA cannot strip you of rights given to you by law. So they cannot strip your right of First Sale.
E. Zachary Knight
www.editorialgames.com
Say a single copy of a game gets re-sold four or five times at retail. All 5 of the game's owners pay to purchase this same copy in turn, however the original developer only gets paid once, whilst the retailer enjoys the fruits of the developers labour.
How is this fair? Please explain.
How is this fair? Please explain.
Easy. The first owner (the developer) sells the copy of the game and gets paid for it. The second owner proceeds to sell the copy and get paid for it. The third owner sells the copy and gets paid for it, etc. etc. Each time the rightful owner of the game receives what they consider to be just payment for releasing ownership of that copy of the game.
If you sell your sofa, do you give the funiture store a cut? If you sell a painting you own, do you give the original artist a cut? No you don't. Because you bought the object, it's yours to do with as you please, with the possible exception of duplicating it.
That right of duplication remains with the developer, they can make and sell as many copies as they choose to.
Couldn't have said it better myself.
I woulad also add, that over all these transactions, the developer has the same number of sold games. They lose none and yet they gain none.
But in the end, we have the right to sell, give or throw away anything that we bought no matter who we bought it from.
E. Zachary Knight
www.editorialgames.com
They are granted a monopoly via the government, that's what copyright is. It's one of the prices of copyright.
I am starting to think companies need to focus on illicit profit on their "goods" and not consumers enjoying the true nature of capitalism, they have created the economy and make huge profits off over charging for goods, they made this disposable economy they should grow up get with the times and offer better deals faster than what you can dig online for.
I is fuzzy brained mew
http://zippydsmlee.wordpress.com/
(in need of a bad overhaul)
Your assertion is that the entire concept of resale is unfair? Once I've purchased something, I should be able to do what I please with it. I mean, if I buy a used Mustang, Ford doesn't get any money. If I buy a used television, Samsung doesn't get any money.
I agree with the other responders.
Another point to consider is that the "payment" from the resale is built into the original wholesale price. How many people would be willing to pay $60 for a game if they were prohibited from lending it to a friend, giving it away, or reselling it when they are tired of it? You are not just paying for your game play, you are also paying for what you can do with the disc subsequently.
The publisher realizes the product has residual value beyond the initial purchaser and prices accordingly (taking into account all other relevant factors). [In the case of promotional copies, the original purchase price ($0) reflects the fact that the net value to the publisher of the buzz generated exceeds the foregone income (hopefully!).]
To take it a step further, the individuals who own said material cannot advertise said material. They sell the game, not the name (it is an odd legal precedence, I know). Furthermore, outside of the physical media itself, the producer of the game retains copyrights on all characters, storylines, items, etc. in them. The sale of the game is a tidy sum, but the content of the characters is what sells the game. Give me the rights to Master Chief any day of the week over a copy of Halo. The great quote goes, you don't sell the steak, you sell the sizzle. The companies make loads of coin based on endorsements (recall the halo slurpee cups and pepsi/mt. dew cans) as well as investments (disclaimer: I own stock, ergo I have paid those companies to produce and sell soemthing). To focus only on the sale of games is to view an important, and financially large chunk of the pie, but by no means the only source of income for studios and production companies.
In a parallel manner, and I believe you cited retailers because you are referencing brick and mortar re-sellers, they only make as much as what they can squeeze out of the game on initial sale (which isn't all that much, anywhere from $5-10) and resale (where they make an assload of coin). They buy the game from me for $10, turn around and sell it for $5 less than a new copy (say about $54) and they have made a round $44...minus state taxes, federal taxes, employee salaries, utilities and upkeep. Yes, they do gouge, but in the long run, the margin of revenue isn't all candy and gold.
To be persuasive we must be believable; to be believable we must be credible; credible we must be truthful. Edward R. Murrow
A good product does not have to be good just have good marketing, nothing like a under developed 60$ game to make you want to rush out and buy more of them…. Good marketing might fool the herd but I’d rather not buy retail even if it means pulling splitters from my butt, a black sheeples life is rough riding the fence and laughing at the witless masses…..
I is fuzzy brained mew
http://zippydsmlee.wordpress.com/
(in need of a bad overhaul)
This ruling makes me happy. I would absolutely hate it if we lost our right of first sale. I hope for more rulings like this.
E. Zachary Knight
www.editorialgames.com
Victory for legal common sense.
While having it confirmed in court is nice, I have seen items with "not for resale" printed on them on sale at used cds/movies/game stores for quite some time.
Also reminds me of how a good amount of pack-in games have those words printed on them, and good amount of them show up on such shelves.
I'm glad this happened, otherwise they could compel someone to agree to their license simply by pushing unsolicited mail through their letterbox.
From the article:
'The decision set aside UMG's claim that recipients of the promotional CDs were not even free to throw them away.'
That's how bad things were getting, apparently they could shove promotional crap through your door and you weren't even allowed to bin them because you didn't own them...
I'm all for freedom of ttnet vitamin speech and allowing rent a car game makers to put whatever they want in games, but there's one thing about this app that has me scratching my head. Correct me if I'm wrong, but from araç kiralama the previous article araba kiralama on this I gathered that players can use Google maps in-game to find the other (real-life?) dealers in their area. If this is the case, has travesti anyone considered what's stopping someone from using this app to actually move drugs between hands for reals?
But majority araba kiralama of their outrage araç kiralama stems from what it could DO TO children, not the content itself. Talk to one of these people and you'll find they don't think any books kiralık araba should be banned from children. Mention American Psycho and they talk about kiralık araç the redeeming value of using imagination to construct a story. Reading, no matter what the content, is largely viewed as a consequenceless activity for people of any age. The reason why I mention American Psycho is because of the content itself. Gaming never has and likely never will have any scenes where someone has sex with a severed head. Not gonna happen. Yet despite this, they'll fight tooth and nail to protect their children from two boys kissing in Bully but whatever they read is harmless... yeah.
The entire arguement is kiralık oto based upon a social normality inflicted by luddites who can't figure out the controls for Halo so it's frightening and terrifying and obviously the cause of youth violence on the rise even though, in reality, it's in decline (which is actually a HUGE suprise given minibüs kiralama the economies status). In a perfect world, we would have parents that actually parent. The idea of sales restrictions on media on oto kiralama any form to accomidate parental unwillingness to get involved with their child's life is the real problem to me. Here I am, 32 years old, and being held up at a self-scan rent a car needing to show ID before I can buy a $10 M rated game all because Soccer Momthra can't be bothered to look at the crap Billy Genericallystupidson does in his free time. It's too hard for her, so I have to suffer?