I don't see any inherent problems with being able to resell your digitally-purchased games. The concerns I see expressed about the threat to developers, especially indie and small-title developers, seem to me like they're FUD, and are dependent upon a view where it's assumed that being able to resell games means that the platforms, publishers, and developers are not making profit off of the 2nd-hand sales market. Well, that's an impossible scenario.
First, every transaction that involves selling a game that's currently registered on a platform necessarily has to use that platform's services in order to be transferred, and likely also for the listing and the payment processing. And that's just for the sale of the game. Then, if the sold game key is specifically for that same platform (as is the case with purchased new games), then whoever purchases that game has to use the platform's services in order to activate the game with that platform to be able to download and play it.
This means that platforms can charge listing, payment processing, transfer, and 2nd-hand license activation fees. And then platforms can split the revenue from those fees with games publishers along the same lines that new game sales are split with publishers. A 2nd-hand market can be done in a way that it's a guaranteed revenue stream for platforms and publishers, and can also be done in a way that pretty much maintains their current revenue streams.
The possible points to charge for fees that I've thought of are:
- listing fee
- payment processing fee
- game account de-activation fee
- 2nd-hand license activation fee on a different account
- a fee to cover maintenance of a registry to keep track of who owns and is entitled to have on their account which game
Things like listing and payment processing fees are just standard for marketplace services (eBay, Amazon, Paypal). The other listing fees are specific to a 2nd-hand games market, and as they're services that require development and maintenance costs, a provider of those services is entitled to recoup their expenses and likely to charge extra for providing the service - just like with every other service.
A 2nd-hand license activation fee to play a game on a different account is not a new concept. It has been considered by companies before:
And some companies have implemented the idea:
Ross' video questions whether platform fees for 2nd-hand game transactions would run afoul of anti-trust laws in the wake of the Paris High Court's ruling. That concern misses an important detail.
But first, let me say that a company is entitled to charge fees for the development and usage of its services. A company cannot be forced to be a charity, and doing that would be paramount to state seizure of the company or an aspect of the company and turning it into a public resource, which only the corporation pays for. It would be like slavery of corporations.
Now, the important detail which that concern of platform fees running afoul of the Paris court's ruling misses is that not all of the prospective fees are related to selling a game. A 2nd-hand activation fee is entirely unrelated to the ability to sell a game, and comes after a game has already been sold. That technical difference is what law is about.
It is necessary for a person to activate their 2nd-hand license with a platform before they can possibly use it with that platform. And if 2nd-hand games are like new game purchases are, then a purchased 2nd-hand game could be activated only with the specific platform its key is for - which means that the platform a 2nd-hand game is purchased from will necessarily also be the same platform that it gets re-activated with. That means the platform which sold the game and likely made profit on the selling of that 2nd-hand game also gets to make profit on the account activation of that 2nd-hand game.
In the case of a 2nd-hand digital games market, it is literally unavoidable that a platform's services be used. Therefore, it is also unavoidable that platforms will be a part of any 2nd-hand digital games market. And they could charge fees for their involvement in the market.
Setting minimum fees, whether it's just for 2nd-hand game activation with a platform, or for all of listing, payment processing, transferring, and 2nd-hand game activation, will protect indies and small-title developers, and can easily make it so that it's cheaper to buy those games today brand new from "grey market" game license resellers than it would be to buy them through a 2nd-hand digital games market.
Fees could be hard-set, or they could scale as a % or a tier bracket according to the listing price or the current non-sale retail price for a game. There could be minimum fees. And additional fees could be justified by platforms having to maintain a registry of who sells what, who is lawfully entitled to activate which license, and that registry might need to be one that is shared by all digital games platform hosts, to prevent fraud, theft, duplicate activations (though, they already can't happen when a key can only be activated on a specific platform), and to settle disputes.
So, platforms, publishers, and indie developers can all be protected in the face of a 2nd-hand games market, and can make a 2nd-hand games market lucrative for themselves. I don't see the Paris High Court's ruling as reckless, clumsy, or not thought-out by the court. I instead view a lot of the responses to the ruling as being knee-jerk reactionary alarmism which is hyping up fears ahead of examining what the realistic changes to the market are likely to actually be.
There are some arguments I've seen people bring up that makes digital goods seem like they're a whole new concept and are different than physical goods because they don't degrade, but they're actually neither new concepts or different in terms of degradation to property that has existed for centuries. And so here are refutations for some common misconceptions about digital goods and ownership concerns:
The concept of non-degrading property is not new:
The first patent for an industrial invention was handed out in 1421 in Italy (1790 in the US). Since then, individuals and businesses have been benefiting massively from possessing property that doesn't degrade. IPs, copyrights, patents, are non-degrading property. Record labels have non-degrading digital masters. Book publishers have non-degrading manuscripts.
Non-degrading property never was a complaint or cause to claim that the law has been thrown for a loop so long as it was businesses and copyright-holders who were gaining more and more benefits over the decades from having non-degrading property. The idea that non-degrading property changes everything suddenly in 2019, only when consumers have suddenly realized that it can mean something for them, too, suggests to me there is unfair play at hand and that we are witnessing the expression of a conditioning of the masses by big businesses who have long acted as though the law is their private tool to be used only to set themselves up as evermore-domineering masters over consumers, who they see as their subjects. It's like the "consumer" people are imposing it upon themselves at this point after having been conditioned that they are just corporations' resources.
Regardless, non-degrading property isn't new. Businesses and copyright-holders have been benefiting themselves by it for centuries. So, the concept when applied to consumers shouldn't cause any hysteria or confusion. It's old-hat.
Regarding degradation, though, computing standards mean that an older program degrades in functionality as hardware and software standards evolve. Also, the appreciability of older software products changes for the market at-large due to new developments that make the older products seem more archaic, limited, unappealing graphics-wise... not to everybody, but to a huge chunk of the mainstream market. So, there is degradation with software products, but it is manifested in unique ways - unique ways that physical products often escape. So, it's like there the degradation merely expresses itself through different avenues.
Regarding the US legal wording which says that the first-sale doctrine (which stipulates that people are entitled to resell their copies of copyrighted works) applies to "instances", and the idea that there is something about a digital copy being non-degrading that makes it not an instance or a "particular" copy:
So... when George Lucas sold Star Wars to Disney, he didn't actually lose his right to distribute Star Wars and can right now sell Star Wars again, and again, to other companies who can then make their own Star Wars movies? Of course not. There is nothing about a property being hard-physical or intangible that decides whether the first-sale doctrine applies to it.
And there has never been a qualifier that each copy has some unique flaw or condition to make a copy a "particular" copy. Each copy that exists is a particular copy, and each copy that a person owns is a particular copy. Does the significance of having access to one copy versus another diminish when each copy is a perfect replication of the others? Yes, in a good way. But that's neither here nor there to the law's reason for stating that the first-sale doctrine applies to particular copies, and I think that detail actually has nothing to do with the identification of particular copies and doesn't factor into the first-sale doctrine. The particular copies are the definitive instances that belong to specific people.
Regarding the idea that software might be different because it is not materialized, or is intangible:
A thing's physical or non-physical state doesn't determine whether it can be owned, sold, and purchased. What does everybody think Intellectual Property is? IPs are not really or necessarily materialized but they are still transferable property and goods when they are sold in transactions. What do people think a patent is? A copyright? Just like with non-degrading property, intangible property has existed for centuries, and even millennia.
Further, data has even more presence than something like a patent or copyright. Any defined data, such as a software program or any particular function of a software program, has a defined form to it. And when it's stored on any storage medium, it takes up real space and technological capacity. It has size, it has a specific form, it takes up presence, and it has specific identifiable capabilities and features. When it is being transferred between end-points in a network, it exists as particles, and particles have physical properties. A computer program is a defined form of data, and data has quantifiable presence.
And if data suddenly is different than hard-physical property and so it can't really be said there's ownership of it, then how does the publisher own it? And then how can people be arrested and charged for hacking of a state's computers and possession of their data and secrets? Obviously, in pre-existing law, data property is treated no different than a hard-physical property where it's the state, or big corporations, or somebody with a lot of money, who is the victim and is seeking action against whoever infringed upon their data property. The idea that it's different exclusively for the lowly peasant consumers is Stockholm Syndrome, and it means that our societies are not ones of justice and equality, but which are made up of different rules for different castes.