Gamers are understandably upset over Microsoft's new policies for game ownership on Xbox One. This image quickly made the rounds as gamers protested Microsoft's proposed restrictions on used games. In light of Microsoft's decision, some are asking: is this legal?
Unfortunately, the answer appears to be "yes," thanks to lengthy EULAs that most consumers typically scroll down through hitting "Accept" without reading. Electronic Frontier Foundation Intellectual Property Director Corryne McSherry explained to Ars Technica that "just because you can sell a used game doesn't mean the platform maker has to make it easy, or even possible, for the new owner to play it." Due to the first-sale doctrine, you are legally entitled to sell your Xbox One game disc--but without the correct rights, it might as well be a broken piece of plastic you're giving away.
According to Microsoft, publishers will ultimately decide whether or not their games can be resold. While other elements of Microsoft's new policies are still draconian, it's quite possible that publishers may choose not to implement any restrictions on the resale of used games. Wedbush Securities analyst Michael Pachter believes that most publishers will choose to let gamers freely resell their games.
"In our view, any publisher that disables used gaming risks a backlash or boycott of its titles by gamers, negatively impacting sales," he told GameSpot. "They would face a huge backlash. They wanted manufacturers to do the dirty work, and both refused." (Note that, at this time, Sony's used games policy for PS4 has not been announced. Their executives have gone on record to say used games work and has confirmed that unlike Xbox One, the system does not require an internet connection.)
If publishers do restrict sales of used games in some way, it may be within a certain window after a game's release. "We think that some publishers may limit used game trade-ins for a specified period of time following the game's launch," Pachter added.
Some publishers have already responded to GameSpot's request for comment on their stance on Xbox One's used games policies. Bethesda said "we haven't had time to fully understand and evaluate their policy." Understandable, given how lengthy and carefully-worded their notice is. Sega said "we are currently discussing within Sega policies relating to the new generation of consoles. As soon as these have been agreed upon with all concerned partners we will make the information public." Given the lack of information surrounding PS4's used games policies, Sega may be taking a wait-and-see approach.
Capcom noted: "At present Capcom has not announced any titles for Xbox One so any decision regarding allowing trade-ins or loaning games has not been determined." Take-Two Interactive decline to comment, but its CEO Strauss Zelnick previously said that "our view about used games has been, as opposed to whining or figuring out ways to punish the consumer for buying used games, we've figured out we better delight the consumer." Unfortunately, many Xbox fans are currently not delighted by Microsoft's current policies. Clearly, third parties have to tread carefully in the coming generation.