Random Thoughts – Randocity!

Can I sell my video game?

Posted in nintendo, Playstation, video game, xbox by commorancy on April 27, 2019

The answer to this question depends on how the game was originally sold to you. Let’s explore.

United States and First-Sale Doctrine

The United States has a lesser understood, but very powerful doctrine known as the “First-sale Doctrine”. This doctrine defines important limitations and exclusions afforded to purchasers of copyrighted (and trademarked) materials. This doctrine is so important that without it, copyrighted and trademarked works couldn’t easily be sold and definitely couldn’t be resold. Basically, this doctrine allows (and is designed) to allow resale of copyrighted works without having to notify or turn over resale profits to the original creator. Via the ‘exhaustion rule’, the original creator ‘exhausts’ specific resale rights once he or she sells a copy of that work to someone else.

Originally, the First-sale Doctrine covered such physical media as books and records. At the time of the the creation of this doctrine, digital media wasn’t in existence. However, this doctrine has also come to apply to software delivered on physical media (such as CD-ROM, DVD-ROM, Hard Drive and even Flash ROMs). Software includes music, movies and, yes, even video games.

In short, this doctrine says that once a creator who holds all rights to a specific work sells a copy of that work, the creator relinquishes all further sales rights (among other rights) of that specific copy. For example, if an author writes a book and a copy of that book is printed and sold, the creator no longer holds any further sales rights to that physical copy of that physical book. If the new owner (purchaser) of that book chooses to sell it, burn it, chop it up into pieces or hold onto it, that’s entirely the purchaser’s right. The one right that is not given to the purchaser is the right to make new copies of it.

However, the new owner can sell their original copy of that book for any amount of money they wish and the original creator no longer has any claim over that sale as that was exhausted after the “First Sale”… hence, this doctrine’s name.

Physical Media Video Games

With video games delivered on physical media, like a CD, DVD or similar, in the US the First-sale Doctrine applies. The copyrighted work exists within a legitimate “First Sale” purchased media. This means that as the “First Sale” purchaser, you now enjoy resale rights given to you over that media. This means you can take that video game DVD back to Gamestop or any other used game seller and sell it back to them for any amount of money they choose to give you. You can also sell it to a friend or put it on eBay and sell it to anyone who wishes to buys it.

Owning a physical original “First Sale” copy of a video game gives you the right of resale.

Buying Used Games

Buying a used video game also affords you “First Sale” rights over that original media. Even though the used physical copy wasn’t sold to you by the content creator (does that ever happen anyway?), the “First-sale Doctrine” still applies to all purchases of original media. However, if the game is counterfeit or has violated copyrights to come to exist, these are unauthorized copies not protected by the “First-sale Doctrine”. Only authorized copies of works are protected by the First-sale Doctrine.

Digital Video Game Sales?

With digital video game sales, this is where things get tricky and where the waters get murky with regards to the First-sale Doctrine. Why? Because it’s a bit more tricky to determine the “original media”. With a DVD that was produced by a manufacturer authorized by the creator, the chain of change in ownership is clear.

When you download a copy of a video game to a hard drive, the chain of ownership remains unclear. In order to sell a single digital copy of a game, you’d have to make a copy to sell it. This new copy would infringe on the copyright holder’s “copy” rights. That means you would have to make an illegal and unauthorized copy to sell it. For this reason, you can’t sell a digitally downloaded copy easily. However, that doesn’t mean the game can’t be sold. It just can’t be sold in the way that you think.

With that said, you can sell your digital video game copies under a very specific circumstance. It will also not violate copyright laws and the sale will adhere to the First-sale Doctrine. Once you click the download button to download that digital copy, the game will be stored on your hard drive on your console or computer. So long as you do not move, copy or transfer that data to another media, that “First Sale” video game is stored on its original media. That means that the copy stored on your hard drive is the “First Sale” copy.

Why is the “First Sale” copy important? It’s important because this copy is the original (and only) copy you received from the purchase.

How Can I Sell a Digital Game?

How can you sell it? Well, that’s the tricky part. You can’t sell only that game. You can only sell the media it lives on. This means you’d need to sell the hard drive that that game lives on. Unfortunately, that’s not enough to authorize play of the game. That hard drive also resides in computer or console.

For PlayStation and Xbox and likely the Switch, there’s also a “license to play” which is part of, but separate from the game download. This “license” lives in a separate location and must be present for the game to play on that console. That “license” is also tied to your “Store” account with Xbox, PlayStation and Switch.

This means that to sell your digitally downloaded games (plural), you’d need to sell not only the hard drive, but the entire console AND your Xbox Live, PSN or Nintendo ID account to have the First-sale Doctrine apply. Basically, you’ll have sold everything needed to ensure the game will play. Of course, you’ll have sold your whole console and all other games along with it. Yeah, it’s kind of overkill, but it’s the only way to sell digital games and stay within the First-sale Doctrine.

With physical media, the license is the media itself. With digital media, the licenses are stored separately and become part of your network account. This means you have to sell the console, hard drive (and all games and content) and your network account. Selling a physical copy of a game is, then, much easier.

Copying Games

The Xbox and the PlayStation allow for copying games from one media to another. The difficulty with this process is that it likely invalidates the First-sale Doctrine. In order to copy a game from your internal media to an external drive, the system has to make a full and complete copy before deleting the original.

Once the system deletes the original, only the second copy remains. This second copy may violate (and invalidate) the First-sale Doctrine. No longer are you playing the original “First Sale” copy. Now, you are playing a copy of a copy that the PlayStation or the Xbox created. However, content creators using the Xbox or PlayStation stores may have to agree to authorize this copying process in advance. If the developer legal agreements require this, then any copied games may still be protected by the First-sale Doctrine.

What this all means, though, is if you sell your console with any games which have been moved from one drive to another, you may not be protected by the First-sale Doctrine.

This situation also exists if you delete your “First Sale” copy from the hard drive, then re-download the game from the store later. No longer are you technically playing the “First Sale” copy. This makes the “First-sale Doctrine” more difficult to apply to video game and harder to know if “First Sale” still applies. It gets even more complicated with…

Game Updates

Because video games require periodic updates to fix bugs and improve the game, this may also invalidate the “First Sale”. Even though the updated copy comes from the original creator, what you bought isn’t what you’re playing after an update. Unfortunately, these nuances to video games, copyrights and “First Sale” have not been challenged in a court. Only a court of law could rule on what applies and what doesn’t under such circumstances as game updates and when copying from one media to another using built-in system tools.

Selling your Console

To sell a specific digitally purchased video game, you’d have to sell not only your entire console unit, you’d have to sell your network ID account that authorizes play of those games. If you did this, you can legally sell these digital copies of your games under “First Sale”.

However, you’re not technically selling a game itself. You’re selling the console and everything that it contains, including all digital copies. To allow for those games to be played by the new buyer and to ensure the seller relinquishes all access to those “First Sale” copies to the buyer, you’d have to sell them your network ID. This means that you have transferred all “First Sale” rights of any games on the console to the buyer and you have entirely relinquished access to those games for yourself.

For you to play a game that was on that console again, you’d have to purchase it anew on a new console using a new network ID.

Game Saves

Saved games are not part of the original “First Sale” game download. These are created separately by the game as User Generated Content after playing the game. In theory, you should be able to make external copies of your saved games (as long as the console allows for this) and import these into any new console you purchase later. This way you could continue playing a game should you buy that game again in the future.

With that said, if a saved game contains any copyrighted content used within the game, copying your saved games might cause copyright issues for you. Though, it would be a separate copyright concern from the game itself. Your game saves are separate content from the game and were created as part of playing the game. With game saves, the player might even be able to argue some copyrights over saved games depending on exactly what is stored in the game save.

For example, if you’re using a music program and you create digital music, when you create a save from that application, you own that game save and you own any original music content you created as part of creating that digital music. The same concept applies to a video game. Because you were playing the game, a game save may contain unique things to your specific game play through. This means that that content is unique to you for that game. As a result, you may own portions of that created content… the portions that were unique to your game play.

However, if the game save contains copyrighted music files, image files or similar, you won’t be able to claim ownership over that content. You can only claim ownership over the content that’s unique to your play through (i.e., your character’s appearance, your character’s wielded weapons, your character’s clothing combination, your character’s stats). All of these character stats combine to create something unique to you… and you may be able to own the copyrights over that uniquely created content.

One thing is certain, save games are not considered as part of the “First Sale” of the game itself. Game saves are items created by the game after the game has been sold to you.

Overall

Can you sell your video game? Yes, under specific circumstances described above. Purchasing physical media of a game is by far the easiest way to resell your game without any problems. Physical copies of video games are completely protected by the First-sale Doctrine.

Unfortunately, selling an individual digital download copy of a video game you purchased through an online game store and downloaded directly to your console (or PC) isn’t possible. While you can’t sell an individual game, you can sell the entire console (or PC), its hard drive(s) and all account(s) associated with the games and that sale will fall under the First-sale Doctrine. Unfortunately, that means you lose access to your entire video game system and any game library you had amassed while you owned the system. No, it’s not in any way optimal, but this is the only one afforded to digital goods consumers under the current U.S. copyright laws.

If you wish to be able to sell individual video games easily after you’re done playing, you’ll need to stick with purchasing physical media boxed copies from a store.

Disclaimer: This answer is written for United States residents. If you’re reading this in another country, you should consult with your country’s own copyright laws for details regarding video game resale rights.

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