You accept a license agreement when you buy software... this is the "contractual terms" you say never accompany the sale. On Steam or GOG these terms pop up during install or purchase and you click to accept... in boxed retail product it is stated on the box a license agreement is accepted by purchasing the game, and you can view said agreement in the manual or online. Movies have those warning that pop up stating your movie is "licensed for private exhibition" and other such things.
Did you read the references I gave you? Yeeah... that's pretty much what I expected from you. As per my previous post, I'm not going to bother discussing this matter further with you at this time.
I don't know what else to say to convince you media has never been sold to you in an ownership sense... it's not really an agree to disagree thing, it's pretty factual.
Media ownership is actually a matter of law, which is pretty much the opposite of being a matter of fact. And if you want to convince me of how this matter of law is currently regarded then feel free to cite a few statutes and court cases that support your position, although I think we both know what the chances of you doing that are. However, since matters of law are highly complicated, only as settled as the most recent court case in a given jurisdiction, and since I'm pretty sure neither of us are lawyers, let's look at this matter from a more practical perspective.
I'm a pragmatic sort, so I think the best way to consider something is by what actually occurs in practice. So let's look at how all the players involved in this matter treat the legality of used game sales. Most customers seem to think it's legal, as they're reselling games left and right. Just about all retailers (including their teams of lawyers) also seem to think it's legal, as they're engaging in it left are right with no fear of legal action coming their way. Even the game companies that you're advocating for seem to regard used game sales as legal. Why do I say this when game companies are whining about used sales and claiming in their EULAs that they're really only selling non-transferable licenses? Well, that's because if they truly believed the courts would consider used sales illegal then they could confidently send out C&Ds and/or file lawsuits against the likes of Gamestop, Ebay, and Amazon, and given the noise some of these companies have been making over used game sales you can be pretty sure they'd do this if they felt they'd win. Yet they don't, and thus they don't believe they can win. QED. So we seem to have all the major players- customers, retailers, and publishers- all on the side of used sales being perfectly legal, and on the other side of the matter we have... you. Care to step out of fantasy-land and join the rest of us in the real world?
I agree that if your product doesn't sell then too bad, but I don't think that applies to situations where piracy or second-hand sales are what is preventing profitability, rather than consumer interest. There is tremendous consumer interest in 10 hour cinematic singleplayer games... if they are not viable on PC, it is due to factors other than quality.
Consumer interest and quality aren't the final relevant metric, market viability is. Air is in high demand, and you could be selling some damn fine quality bottled air, but aside from President Skroob you're not going to have many customers. Whining that the market should be different from how it is is pointless- it's not going to change itself simply on your account. And if you want the government to step in and change the market through new laws then you'd better be able to present a damn strong argument why such a change would be in the public interest (or have a nice fat bribe... oops, "campaign contribution"), and so far you haven't even attempted to present either of these.
I'm not trying to change any laws... license agreements have always restircted what you can do with a game you purchase a license to play, the problem is that boxed retail versions make enforcing the license a difficult proposition. Someone with a DVD of Spider-Man is not licensed to exhibit it to people outside his home, but who is to stop him from lending it out, or showing it to the neighborhood on a huge outdoor theatre screen?
To briefly continue the little game of "uh-huh, nuh-uh" you've started up, it's not licensed, it's sold unless clearly presented as otherwise at the point of sale. Now, to absolutely shred your analogy, public performances are specifically dealt with in the copyright act, not through licensing agreements; lending is perfectly legal, and is explicitly allowed under the copyright act (with further provisions for commercial lending); and you can play a DVD anywhere you damn well please unless you're running afoul of the public performance limitations. See what happens when you try to speak about issues you haven't even looked into?
My whole point is that Steam makes it easier to enforce license terms on the consumer, this thread is about Steam and someone buying a used boxed Steam game after all. In the future, when all media is digitally distributed, the license agreements will be easier to enforce in all media, just like Steam.
Steam actually treats the game as a licensed, not sold, product. One of the key points in Vernor was that it was the characteristics of a transaction that defined it, not what one party chose to call it. Now, I'm personally of the opinion that Steam isn't nearly upfront enough about what people are actually getting and I'd love to see the FTC come down on them (and quite a few other digital distributors) under truth in advertising laws, but as the FTC are, for the most part, a bunch of fucking tools that's probably not going to happen anytime soon. But I digress.
What I actually wanted to touch on, and I'm glad you allowed me to segue into this, is that there are currently plenty of options for companies that want to license rather than sell their games. Even games on physical media can be tied to an account or hardware configuration to conform to whatever the license says. The catch, though, is that you need to inform your customers clearly that they're only licensing the content and what the material terms of the license are before
any money changes hands. Don't do this and your customers will feel like you're trying to pull a fast one on them (because you are). They're not gonna be happy, and neither will they feel much of a compunction to abide by the terms of the license. You'll also be committing flat our fraud, and if you're egregious enough about it the tools at the FTC may finally get up off their asses and come after you.
You see, when game companies whine about how used sales are hurting them they're not complaining that they can't prevent used sales, as they already have all the tools needed to do this. What they're actually complaining about is that if they do so they either have to let their customers know upfront, which decreases what some customers are willing to pay and gives their competitors a nice selling point, or they have to try to sneak it past their customers, which usually doesn't go over so well. That's why they complain- they want a ban on used game sales imposed universally and externally, so that they don't have to deal with the market realities of licensing as opposed to selling.
Again, there is no law that needs to be changed and there is no ownership of a video game without purchasing the rights for millions of dollars. I'm not advocating any changes in ownership laws... when you actually own something, you own it, period. You don't own videogames though, unless you're Ubisoft, EA or whoever else.
For the third time, Ubisoft does not sell games, they sell licenses to use their copyrighted and owned software.
The point of my comment was to show the flaw of thinking of a videogame as an owned product. If you honestly think it's okay for everyone in the world to play Assassin's Creed and Ubisoft gets $50 out of it, you exemplify the problem with the average Joe's misconception of what ownership of a video game disc means.
Video games are already treated as owned properties by all the parties involved, and yet your scenario of everyone waiting 10 x n hours (n = 1-6.5 billion) to play a single copy doesn't seem to be coming about. Why? Because of the realities of the actual market. Time to step out of fantasy land and join the rest of us in the real world. Now, if the real world somehow turns into fantasy-land we can discuss what, if anything, needs to be done about this problem, but for the time being lets stick to discussions about the real world.
A videogame is not a hammer... thinking of a game in terms of a physical possession is exactly the problem with your logic system on these issues
Introducing artificial scarcity via copyright so that immaterial goods could be treated like physical goods is just how copyright was intended to act. Want to ditch copyright and talk about what system we should institute in its place? Fine. But until then I'm not about to stop thinking about copyrighted goods in different terms than material objects just because of your protestations. Not to mention that nearly all of the copyrighted goods being resold are actually joined to physical objects. So why shouldn't we be treating these physical objects as physical objects again?
It's not fraud as the license terms are clearly written out for you to peruse and then accept, and if you do not accept them you are not given access to the game.
I've never seen license terms written on the box of a game. I've never seen them listed on sites like Amazon when I'm buying a game through them. I've never been presented with such terms prior to purchasing a downloadable game. In fact, I've never been presented with any
license terms prior to exchanging money for any game. It's only once I get home and go to install what I already bought that I'm presented with what pretends to be a license, demanding that I agree to it or be unable to use the product I bought, and offering me absolutely no consideration in exchange for the rights it wants to take away. And if I don't agree I've yet to hear of a retailer willing to refund me the cost of the game and compensate me for my time and any additional expenses incurred in returning the game. Guess how compelled I feel to honor any terms contained in this "license"? On this note, I will say that one of the things I like about GOG is that, while not perfect, most of the material terms of the license are clearly presented via their FAQ page for anyone to easily peruse before making a purchase. Still not ideal, but enough that I'm willing to consider myself having bought a license in good faith from them.
Now, since I'm guessing you actually don't know much about how contracts and licenses work outside of fantasy-land, let me fill you in on a few key points. A contract or license isn't worth the paper its written on until a court upholds it. If it comes before a court the court could uphold the contract in its entirety, or decide it's superseded by some law, or decide it's a contract of adhesion or was made under duress, or declare any or all of it unconscionable, and at the whim of the judge invalidate the contract in part or in full. And contract law is fucking complicated, so good luck predicting how a judge will rule unless it's a very cut and dry case. But the other key point is that contracts should rarely be ending up in court because they should be a formalization of terms for a transaction that are agreeable to both parties involved. It's only if one party decides to act in bad faith that the matter can then end up in court. The thing is these days, though, that many companies try to attach contracts and license terms to products without fully informing the customer, by presenting the contract or license after the sale has actually taken place (while refusing returns), and by using their much stronger bargaining position to present the contract as a "take-it-or-leave-it" deal without any kind of a meeting of minds. And through a combination of these tactics try to foist highly unfavorable terms on customers. And since in these case the company is basically acting as a bad-faith actor from the very beginning customers see no reason to place along with the farce of a license or contract unless technical measures are in place to enforce it. Then if the company is incensed enough by this the matter ends up in court where a judge roles 2d20 to determine his ruling.
And with that hopefully you have a bit better understanding of why, when someone brings up the "it's licensed not sold" tripe my first reaction is to just laugh it off as the joke that it is. I'm probably just wasting my time though. Oh well.
recent DRM which limits your license period is an exception, and that's why so many people, myself included, hate it with a passion.
In a way I love this kind of DRM, as it's resulting in companies finally having to be honest about what they're trying to offer the customer, and the customer becoming aware of this. It's been dragging companies and consumers out of fantasy-land and into the real world, and it turns out that in the real world consumers don't like have odious terms foisted on them. Who would have thunk it?