A Philosopher's Blog

Are Used Games Theft?

Posted in Business, Ethics, Law, Philosophy, Technology, Video Games by Michael LaBossiere on September 13, 2011
Heavy Rain

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According to the French game developer Quantic Dream, the company has lost  between €5m and €10m due to the selling of used copies of its game Heavy Rain. This estimate was calculated by matching the sales figures of new games with the number of players registering Trophies on PSN. The company’s co-founder Guillame de Fondaumiere summed the matter up by saying, “on my small level it’s a million people playing my game without giving me one cent.”

While de Fondaumiere is not actually accusing buyers of used games of being involved in an act of thievery, the parallel to piracy seems to be an apt one to draw. After all, one stock argument against the digital  piracy of video games is that the piracy is costing the companies money via lost sales. However, the people who buy (and sell) used copies are clearly not engaging in piracy: the buying and selling of used property is well established and the burden of proof rests on those who would argue that the owner of a piece of physical property (in this sort of case, a game disk) cannot re-sell his used property. To use the obvious analogy, if I buy a house, then I have the right to resell it again. Imagine, if you will, a developer complaining that he is not getting a cut every time the house he sold is re-sold. Obviously, they would like such a cut. But, when it is sold, it is sold and the right to re-sell it goes along with the purchase (unless specified in the contract).  To use another analogy, when I do my job, I do not expect to be endlessly paid for the work I did (even when my students use what I taught in their careers)-I get paid for it and that is the end of it.

The matter become a bit less clear in cases of digital purchases, but Fondaumiere is discussing the re-selling of the actual games disks. As such, there seems to little foundation for his complaint, other than the fact that he is worried he is not getting every cent he thinks he is owed.

One obvious factor worth considering is that the reselling of a used game does not entail that a sale is lost. As a gamer, I can attest that there are games that I have bought used that I would not have bought new. As such, calculating the “loss” from used game sales would be somewhat tricky.

A second factor is that gamers sometimes wait for the price to drop on a game. For example, I bought Borderlands when the Game of the Year edition came out (with all the expansions included). It was much cheaper than the original version, yet it would be odd to say that my delay robbed the company (they did, of course, get some money from me).

A third factor is that when gamers buy games, they often factor in the fact that they can resell the game or pass it on to someone. Laying out $60 for a game is more palatable when you know that you’ll get some of that back or that you can give it to someone. While it is difficult to calculate the positive sales impact of the ability to re-sell or give away games, it would seem to be a factor worth considering. As such, the re-selling of games might not be a losing proposition for game companies. At the very least, this factor would mitigate any harms done by the reselling.

A fourth factor is that gaming stores generate significant income from re-selling used games (often over and over). While this has also been a point of contention, it does help retailers stay in business and thus be available to sell new copies of games.

However, de Fondaumiere  contends that the retailers will ultimately hurt themselves by selling used games. He asserts that game companies will think that they cannot make money via retail and will instead go to direct online distribution (which is already an option for many games), thus eliminating the retail game sellers by removing their access to products. From the perspective of retailers, this would be rather bad-after all, many retailers make their main profits from selling (and re-selling) used games. It is, of course, worth noting that the used record and CD retail industry took a severe hit with the advent of the digital revolution. The same could very well happen to the gaming world. While I have bought games via Amazon, it has been years since I bought a game at an actual physical store and I often buy download versions of PC games.  This trend might solve the problem of used games, at least how he sees it. Of course, this might also lead consumers to be more reluctant to purchase games on release-after all, being unable to sell them back or give them away does reduce their value for some customers.

My considered view is that the selling of used games is acceptable and companies have little grounds on which to complain of such losses.



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  1. Edward Carney said, on September 13, 2011 at 4:34 pm

    As new media evolve and methods of distribution change, terms like “theft” are becoming delightfully vague. Few people would question my right to sell a CD at a garage sale, but what if I had purchased a digital download of an album and offered it for sale at a reduced price, transferred the album to a buyer electronically, and then deleted my original copy? The exchange is effectively the same. In both cases the new buyer owns the music, and I no longer do. But is the latter scenario a case of piracy because the buyer circumvented the commercial distributor in obtaining a product that is incapable of transferring ownership directly or undergoing physical wear?

    Thought experiments aside, I get the impression that consumers and distributors are pulling in opposite directions in response to these challenges of definition. Some consumers seem content to assume unlimited rights of redistribution, while certain persons with financial interests in media, like Mr. Fondaumiere would apparently argue that the consumer has no rights of redistribution whatsoever. It may take a very long time to reconcile perspectives that continue to grow so far apart.

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