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THQ and Used Games

Last week a Creative Director of THQ was quoted online as saying that he doesn’t care about the second-hand market for video games, because the people who buy used games aren’t his customers. This was in response to questions about his company’s decision to offer one-use codes for content with the game Smackdown v. Raw 2011 for online use. Not just being able to use the online multiplayer system, or unlock new costumes or special features, but to use the game online at all.

Many gamers are up in arms over this situation, especially as it was featured on Penny Arcade with debate ranging from support of his position to calls for a boycott of every game produced by THQ. The Tycho persona of the Penny Arcade team seems to support the statement, going so far as to call people who trade in used games “pirates.”

From a copyright perspective, viewing used games and the secondary market created by trading the physical copies of creative content as piracy ignores and does away with the first sale doctrine. Embodied in 17 U.S.C. §109, the first sale doctrine allows people who have purchased a physical copy of a book or CD or game to resell it without seeking additional permission from the original author. The doctrine is limited to the sale or transfer of the physical copy of a protected work, and thus may not apply to digital works or downloadable content.

However, the Creative Director is literally correct when he says that people who buy used games are not his customers. They may play the game and rely upon his support services, but the physical used game was resold by a third party, often GameStop, and the game developer only gets paid when new games are sold. The secondary, or resale market, is controlled by GameStop, eBay, Amazon Marketplace, and Craigslist, not the original game developer.

Having the developer try to ensure that they get paid for their content creation, and that gamers are still willing to be early adopters of highly-priced software might be an adequate trade-off to being thought of poorly by those who only buy used and reduced price games.

This very debate is one reason that I started using to trade my used games instead of monetizing them on behalf of GameStop. I am still paying a third party to facilitate the transaction, and the original game produce doesn’t get any extra cash from my acquisition of a “new to me” game, but it takes a certain number of game trades out of the physical video game store, and enables me to play games that I wouldn’t be willing to buy for $20 outright.

Posted in Monday: Legal Landscape.