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Unpublished Paper
Game Over For First Sale
ExpressO (2013)
  • Stephen J McIntyre
Abstract
Video game companies have long considered secondhand game retailers a threat to their bottom lines. With the next generation of gaming consoles on the horizon, some companies are experimenting with technological tools to discourage and even prevent gamers from buying and selling used games. Most significantly, a recent patent application describes a system for suppressing secondhand sales by permanently identifying game discs with a single video game console. This technology flies in the face of copyright law’s “first sale” doctrine, which gives lawful purchasers the right to sell, lease, and lend DVDs, CDs, and other media. This Article answers a question posed by many industry analysts: whether it is legal to employ technology that restricts first sale rights. The answer hinges on two statutes: the Digital Millennium Copyright Act (DMCA) and the Sherman Antitrust Act. The DMCA broadly protects technological measures that restrict access to copyrighted material, which would likely include technologies aimed at suppressing secondhand video game sales. If gamers came up with a method for getting around these devices, they could potentially incur liability under the DMCA. However, some courts have interpreted the DMCA narrowly so as to allow circumvention that does not clearly lead to copyright infringement. Since accessing the content on a video game disc does not constitute infringement, this construction of the statute would most likely permit gamers to lawfully circumvent restrictive technology. Moreover, technology that abridges first sale rights may violate the Sherman Act, which prohibits monopolists from acquiring, maintaining, or extending their market power through predatory or anticompetitive means. Courts recognize the importance of secondhand markets, and have held that monopolists may not use technology to suppress competition. A Sherman Act challenge to anti-used game technologies would therefore be plausible. However, the difficulty of demonstrating that any video game company possesses monopoly power could be fatal to the claim. Given these doctrinal complexities, it may ultimately devolve upon consumers to vote with their wallets and choose not to patronize video game companies that engage in anticompetitive business practices. Otherwise, it really could be “Game Over” for first sale.
Keywords
  • copyright,
  • first sale doctrine,
  • monopolization
Publication Date
March 4, 2013
Citation Information
Stephen J McIntyre. "Game Over For First Sale" ExpressO (2013)
Available at: http://works.bepress.com/stephen_mcintyre/6/