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How much ownership do we have of our games?

Posted: 2nd March 2012 19:58

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I just had the following thought about this issue, especially regarding (though not limited to) access to games we've bought through digital distribution services (such as Steam). I know that wondering what recourse users would have if Steam suddenly up and suspended their account or went out of business is a very active topic of discussion among Steam users.

Does anyone know whether there would be a difference between granting a license to us to play the games and selling us that license?

Because as far as I know, it seems that (according to those user license agreements) all these vendors grant us a license to play the games we "buy". One could say we're not actually paying for anything, since the word "grant" typically implies doing something for free. So what are we paying for? I guess we're paying for the service that grants us this availability of access to games we've "bought" (whatever that means)...

Does anyone around here who's a lawyer (or may be familiar with IP law/policy) know what would happen if the wording were changed to say that we are purchasing licenses? Would we as consumers have a better chance to retain access to our games or be justly compensated if they became unavailable, under that wording?

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Posted: 2nd March 2012 21:51

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I'll pitch in and say from what I know the licence is from the game company not Steam, unless you're getting a Valve game. So in short even if Steam went belly up your rights as a licensee would be untouched. Now I could be wrong but here's where I'm getting it from.

Quote (Steam Subscriber Agreement)
6. THIRD PARTY CONTENT

In regard to all Subscriptions, Software, and related content that are not authored by Valve, Valve acts merely as an intermediary service provider. Valve does not screen such third party content available on Steam or through other sources. Valve does not assume any responsibility or liability for such third party content.

Source.

And here's a EULA for a Square Enix game. I didn't see anything in it that states the game must be played on Steam. That's actually really interesting.

I have no idea what happens to IP in the states if a company is wound down. Presumably the orphan work would either become in public domain or be sold to another company as part of the administration, liquidation or receivership. A licence over here is a personal right rather than a real right so basically if Valve disappeared there would be no claim to the Valve IP you could make. I'd wager that's the same position in the US although the terms and reasoning would be different, but that's an assumption that could be very very wrong. However I did read that 'almost all' US licences are contractual which means the same thing; if one party to the contract doesn't exist then there isn't a contract, simple. Remember that third-party games would probably not be affected from what I understand.

I don't think there's a difference between buying and being granted licences. I'm pretty sure 'grant' is not necessarily doing something for free by definition.

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Posted: 5th March 2012 10:16
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Don't have much to add to this thread (I don't own a single console younger than the PlayStation 2 for personal reasons), but just wanting to say that I have never paid a single dime for anything that is "downloadable" (unless I can't find said game anywhere else, which would be a very rare situation to be in). I don't buy the whole "licensing" thing either, and rather just ignorantly pass it all off as nothing more than a glorified greed tactic posed by top companies to mooch off gamers.

It is my firm belief that a bunch of "downloaded" media doesn't count as an actual collection (of games, music, movies, etc.). I only buy my games physically (and used -- who the hell in their right mind would want to pay $50-60 for a brand new PlayStation 3 game?). No matter what anyone else says, the real deal is the physical product itself.
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Posted: 5th March 2012 22:14

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I know there is a lot of wariness of digital distribution from the oldschool elitist crowd - I used to share some of those concerns. That ended a few years ago when I started sampling Steam and GOG, and I've gotten so much good out of those services that I've since enthusiastically supported digital distribution. It's usually cheaper, games almost always run better without a disc to read from, and Steam, GOG, and Amazon are services with such strong track records that I'm confident in my game library's security.

Plus, if a major distribution service ever unjustly removed the right to play purchased merchandise from the hands of one of their consumers, **** would hit the fan. I'm aware of what companies like Sony have in their terms and conditions statements, but they'll still protect digital merchandise as much as they can to avoid a class-action lawsuit with a plaintiff count numbering in the thousands or more.

But the real pro of digital distribution has to bee the recent swelling of success for smaller studios (woo alliteration!). Successful digital-only titles like Minecraft, Bastion, Super Meat Boy, and Braid have become well-known to gamers thanks to disc-free business models and I have to say that gaming consumers are better off being able to enjoy those games when any of them would have struggled to see a retail release. Digital-only services mean that a few barriers of entry to the game industry for aspiring developers have been removed or simplified, consumers are seeing a wider variety of games available for purchase, and price points are lower and more sensible than ever. I like it.

On only purchasing hard-copies: yes, I know it appeals to collectors and elitists, and I enjoy a shiny disc with a box and manual when possible. But does it make a difference in quality of gameplay, audio, or visuals? No, and that's what I care about more than a hard copy. I also care more about supporting game developers and publishers more than supporting retailers or manufacturers, and digital distribution, so it suits me just fine buying hard copies new instead of used.

This post has been edited by laszlow on 5th March 2012 22:14

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Posted: 5th March 2012 22:19

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Quote (laszlow @ 5th March 2012 18:14)
I know there is a lot of wariness of digital distribution from the oldschool elitist crowd - I used to share some of those concerns. That ended a few years ago when I started sampling Steam and GOG, and I've gotten so much good out of those services that I've since enthusiastically supported digital distribution. It's usually cheaper, games almost always run better without a disc to read from, and Steam, GOG, and Amazon are services with such strong track records that I'm confident in my game library's security.

Plus, if a major distribution service ever unjustly removed the right to play purchased merchandise from the hands of one of their consumers, **** would hit the fan. I'm aware of what companies like Sony have in their terms and conditions statements, but they'll still protect digital merchandise as much as they can to avoid a class-action lawsuit with a plaintiff count numbering in the thousands or more.

But the real pro of digital distribution has to bee the recent swelling of success for smaller studios (woo alliteration!). Successful digital-only titles like Minecraft, Bastion, Super Meat Boy, and Braid have become well-known to gamers thanks to disc-free business models and I have to say that gaming consumers are better off being able to enjoy those games when any of them would have struggled to see a retail release. Digital-only services mean that a few barriers of entry to the game industry for aspiring developers have been removed or simplified, consumers are seeing a wider variety of games available for purchase, and price points are lower and more sensible than ever. I like it.

On only purchasing hard-copies: yes, I know it appeals to collectors and elitists, and I enjoy a shiny disc with a box and manual when possible. But does it make a difference in quality of gameplay, audio, or visuals? No, and that's what I care about more than a hard copy. I also care more about supporting game developers and publishers more than supporting retailers or manufacturers, and digital distribution, so it suits me just fine buying hard copies new instead of used.

All of this. But I'll add to it by saying that digital distribution is cheaper, both for the consumer and publishers. You don't pay sales tax, they don't pay to print discs. Combine that with the ability to re-download any game you've purchased at any time and you've got a model that has far more positives than the ability to point to a case on your shelf.

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Posted: 6th March 2012 03:52

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I hate to get philosophical, but I guess that's what I do on vacation (side note: I recommend Folly Beach, South Carolina. Ten minutes out of Charleston. Not as kitschy).

What do we really own? I guess that someone could say that owning a hard copy of the game makes you feel like you own it. But it just takes one time dropping and breaking a disc to realize that it's just as fragile.

I think that the hesitation that people like me have is that we are afraid that those digital downloads could suddenly be taken, blocked, or erased. I think that some of those problems are understandible, but especially with the Virtual Console, I've been able to buy games that aren't being produced physically anymore. While I don't get manuals, boxes, etc., I get the games. And I think that the fear of losing those copies of Super Metroid, Chrono Trigger, or FFVI is the same as the fear of my SNES breaking down.

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Posted: 6th March 2012 14:23

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Quote (laszlow @ 5th March 2012 23:14)
Plus, if a major distribution service ever unjustly removed the right to play purchased merchandise from the hands of one of their consumers, **** would hit the fan.  I'm aware of what companies like Sony have in their terms and conditions statements, but they'll still protect digital merchandise as much as they can to avoid a class-action lawsuit with a plaintiff count numbering in the thousands or more.

That's true, but the problem would be if a games company folded and we had no-one to sue. I'm afraid I don't know how your licence would be affected but outside of some statutory or equitable remedy there would cease to be a licence to the IP, even if the IP was bought by another company. I tried looking up what happened with Midway's games but couldn't find anything other than where their IP was sold to. There could be a really bizarre situation where people with Midway CDs are playing those games unlicenced but I think there's a simple answer, I just don't have it. smile.gif

Edit: I asked a friend about this and he said the licencor could transfer his rights with IP similar to how a licencee would. So Midway could sell the IP and transfer the rights and everyone who bought the games would then be connected to whoever bought it e.g. Eidos. So that might be a possibility that makes our buying of games a bit safer.

Also bear in mind that because of corporate structuring a smaller subsidiary company could be wound down and the parent company could not be sued e.g. Sony Distributions Intel Tech Hardware Ltd. It's unlikely they'd be free of liability because of a continuing crackdown on this kind of thing but it can and has happened before. I genuinely think that the more we stray away from hard copies the more likely we are to have a problem along these lines. At present companies are usually taken over and refinanced as they stand such as Eidos, and the games market is relatively safe, but in the future everything could change.

As a more credible example imagine if Spotify went bankrupt. Any rights you had over their music would be lost and no remedy could be sought. It's the same with what I think is the future in services like OnLive. I'm not worried that any of these things will happen but I just want to call it if in the next 5-10 years something happens along these lines and these problems materialise.

This post has been edited by sweetdude on 6th March 2012 18:21

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Posted: 7th March 2012 21:03

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Quote
At present companies are usually taken over and refinanced as they stand such as Eidos, and the games market is relatively safe, but in the future everything could change.


Well, this is kinda a big deal anyway since the videogame industry, at least so far in its about three decades of history, has seen quite a bit of instability among developer and publisher companies. Less so for the highest-profile publishers, but every time I go Wikipedia-walking about video game industry articles I see stories of studios and companies going out of business left and right.

----

I had an odd idea suddenly.

What if a developer were to, instead of licensing the right to play a game to its customers, sell copies of its game as shares in the company, so its paying userbase also became its shareholders?

(let's assume it self-publishes for now)

You'd obviously need some special rules, such as when the right to play the game can be decoupled from ownership of the share itself, as well as deciding just how much of a dividend the customer base ought to receive--or maybe only some of its paying customers are shareholders, under certain arrangements.

Would be interesting if you had fans--who are also shareholders--commenting on how a game's design ought to evolve or be improved, or what sorts of games the studio ought to design. Would it necessarily be a good idea? I'm not saying it is; just an interesting thought experiment.

I have very little idea of how this would all work out. I have pretty much no experience in corporate investments. But I'm just curious.

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current games (2024-02-19):
Fairy Fencer F ADF
Pokémon Perfect Crystal

finished so far this year:
Gato Roboto
drowning, drowning
New Super Mario Bros.
TMNT 3: Radical Rescue

tabled: Lost Ruins
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Posted: 8th March 2012 04:09

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Quote ("SweetDude")
That's true, but the problem would be if a games company folded and we had no-one to sue. I'm afraid I don't know how your licence would be affected but outside of some statutory or equitable remedy there would cease to be a licence to the IP, even if the IP was bought by another company.


As a manner of fact, there just so happens to be such a statute, although I'm not precisely sure to what extent it's enforceable. Under U.S.C. Title 17, Chapter 2 Section 205, specifically paragraph (e), your license, if valid, should remain valid in the event that ownership of the copyright is transferred. In the case of an E.U.L.A. often times your click is considered a signature of sorts.

If steam ever gave up the ghost, at the very least your license should still be valid. To what extent it's useful is another story however, since you likely couldn't legally circumvent the D.R.M. is embedded in Steam due to D.M.C.A. anticircumvention provisions detailed in Title 17 chapter 12. You might be able to play the game using offline mode and back up the game using Steam's backup function but computers are relatively disposable items for their price. If Steam's servers ever went down, you might not be able to directly transfer your game on another, and by extension newer, computer.

There is also some controversy over the validity of whether E.U.L.A.s are indeed legally binding though because as an agreement between two parties, they have to conform to the standards of contract law. The question primarily hinges upon whether there's a contract implied in fact established at the bill of sale. If there is, any subsequent license unilaterally imposed upon the end bestowing unto to them no additiona benefit would be invalidated as a form of economic duress. This is particularly important since many of these licenses aren't reviewable until after you've already forked up the cash. You may want to read up on Softman vs. Adobe Inc.. for some of the rationale behind the controversy.

Anyway, I personally prefer to buy physical copies of games as to maintain the second hand market which serves my interests in vintage game acquisition quite nicely through first sale doctrine. It's listed as a limitation on exclusive rights in the copyright code and cannot be waived by a simple disclaimer such as the Not for Resale found labels on copies of Sonic the Hedgehog that were bundled with the Genesis. This was determined in Bobbs Merrill Co. vs. Straus and upheld in U.M.G. vs. Augusto.

Whether its an ability that can be contractually waived another manner of controversy. As a limitation on exclusive rights, first sale doctrine doesn't constitute copyright infringement per se but it may or may not be considered a breech of contract. However at the same time, the law doesn't want to be the statutes to be too easy to defeat.

Now when I previously wrote about R.O.M.s I was using precedent set by Step Saver Data Systems, Inc. vs. Wise Technology to establish that a licensing agreement cannot override first sale doctrine. However it's worth noting that I wasn't aware of the more recent Vernor vs. Autodesk. decision made in the ninth circuit court, which finds that first sale doctrine doesn't apply to licensed works because a sale was never technically made. It also lists a certain minimal criteria where license would be found, which at the very least wouldn't apply to most earlier games as their licenses aren't sufficiently restrictive. It's worth noting that the decision made in Vernor took into sole consideration the court's own set precedence to keep in line with doctrine of Stare Decisis.

Neither case has a direct influence on one another because the two courts have separate jurisdictions (only the supreme court sets binding precedence nationwide. Other precedent can be suggestive but won't necessarily have bearing on the case, if it's from a court with lesser or no jurisdiction.) However for our purposes, it's important to keep in mind that the ninth circuit would more often be the jurisdiction of choice, as it contains many of the video game giants. Washington State being the home of Microsoft, Nintendo of America and Valve and California being the home of Sega and S.E.C.A. not to mention Silicone Valley and Hollywood. S.E.C.A. was able to drag Geohot into a ninth circuit court for a suit regarding custom firmware for the P.S.3. that reenabled the Other O.S. functionality, amongst other things, despite his attempts to have his case tried in his home state.

One final thing to note is the computer software rentals act of 1991.

Quote ("Title 17 @ chapter 1, Section 109, paragraph (B) (1)")

(A) Notwithstanding the provisions of subsection (a), unless authorized by the owners of copyright in the sound recording or the owner of copyright in a computer program (including any tape, disk, or other medium embodying such program), and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord nor any person in possession of a particular copy of a computer program (including any tape, disk, or other medium embodying such program), may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord or computer program (including any tape, disk, or other medium embodying such program) by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending. Nothing in the preceding sentence shall apply to the rental, lease, or lending of a phonorecord for nonprofit purposes by a nonprofit library or nonprofit educational institution. The transfer of possession of a lawfully made copy of a computer program by a nonprofit educational institution to another nonprofit educational institution or to faculty, staff, and students does not constitute rental, lease, or lending for direct or indirect commercial purposes under this subsection.
(B) This subsection does not apply to—
(i) a computer program which is embodied in a machine or product and which cannot be copied during the ordinary operation or use of the machine or product; or
(ii) a computer program embodied in or used in conjunction with a limited purpose computer that is designed for playing video games and may be designed for other purposes.


In simple terms, software that can be permanently installed on a P.C. cannot be rented under first sale doctrine to prevent abuse. Console games however, where the game is locked onto the disc during the intended use, like cartridges or PS1 games are freely rentable....

This post has been edited by Tonepoet on 8th March 2012 16:56

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Posted: 8th March 2012 11:00

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Your citation of UMG Recordings, Inc. v. Augusto makes me wonder about this licensing issue regarding digital distribution instances of a game.

What exactly are the benefits the licensor expects to gain from this right-to-play-the-game being a license rather than a sale, if we're distinguishing between the two? Obviously, the licensor doesn't expect to repossess it at some point. Do licensors get some sort of recurring benefit from digitally distirbuted games? Like, would Redigit have some way of gaining recurring benefit from me being licensed a copy of Terraria? And of course, what if Redigit goes out of business? Or better yet--as Redigit has actually announced, it plans to stop updating Terraria after one last upcoming patch...what then? What if they completely stop supporting Terraria?

Because otherwise, a digital distribution transaction does seem to at least satisfy the perpetual possession piece.

Looking further though, we seem to have a spate of conflicting case law, between SoftMan v. Adobe and U.S. v. Wise on one side and Mai, Triad, Wall Data, and Vernor v. Autodesk on the other. Unfortunately, it seems the trend is moving toward recognizing these purchases as licenses with restrictions rather than sales subject to the first-sale doctrine.

Quote
The ALA fears that the software industry’s licensing practices could be adopted by other copyright owners, including book publishers, record labels, and movie studios.


And now I'm feeling a bit of the same way too.

That said, the thing you cite about installable software being non-rentable makes a lot of sense. Going by extension, it seems that instances of installable software (that can be run without physical media) cannot be transferred from one owner to a (potential future) owner--at least, not easily in typical ways. So the first sale doctrine doesn't seem to have much hope here.

It doesn't quite address some other issues, though, such as whether more than one person may use the software in the same installation, whether it can be installed multiple times on computers used by the same person, or stuff. Of course, this can all get specified in a license agreement, but whether it's enforceable I guess has yet to be seen.

...but I'm not a lawyer and I don't know what case law might be relevant to these issues. I wonder if Tonepoet is a lawyer (or law student) because he's citing case law left and right.

This post has been edited by Glenn Magus Harvey on 8th March 2012 11:06

--------------------
current games (2024-02-19):
Fairy Fencer F ADF
Pokémon Perfect Crystal

finished so far this year:
Gato Roboto
drowning, drowning
New Super Mario Bros.
TMNT 3: Radical Rescue

tabled: Lost Ruins
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