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The Witch Hunt Against Used Games is Counter-Productive

The Witch Hunt Against Used Games is Counter-Productive

Having beaten the DLC/DD issue into the ground over my last two articles, I figured I’d switch gears for a moment and spend some time pontificating over used games and their place in the industry.

Dating back almost to gaming’s founding, there has been a bitter enmity between game developers and used game retailers. The opening volleys of this conflict were launched in the 80’s when Nintendo launched a variety of lawsuits and legal efforts in an attempt to have game rentals and the sale of used games declared illegal. Their court case fell through, presumably because judges were more intelligent back then. Throughout most of the 90s, the two sides mostly abided by an unspoken truce, doing their best to stay out of each other’s way and coexist peacefully. However, late last decade, the conflict started to flare up again and has now escalated to all-out war.

What prompted this outburst depends largely on who you talk to. Since you’re talking to me (or at least reading my articles), I’m going to go straight for the elephant sitting in the middle of the room: GameStop. As you may have gathered from the title of this article, I’m distinctly on the “pro-used games” side of the argument. However, so people don’t get the wrong idea, let me make my thoughts on this company clear:

GameStop is a blight on the gaming industry, a shameless corporate parasite whose entire business model revolves around freeloading off the hard work of others while offering next to nothing in return and the entire industry would be far better off if they disappeared off the face of the planet tomorrow.

Sorry… just had to get that out of my system.

To explain my viewpoint with a little less diatribe, GameStop’s main focus is their used games market. In that sense, it seems somewhat counter-intuitive for me – a used-game advocate – to denounce them. The problem is, instead of letting their used game sales compliment their marketing of new games, GameStop focuses on their used games above all else. From a pure business perspective, this makes sense. GameStop has the choice between selling a $60 new game and getting maybe $20 of profit, if that, or selling a $40 used game and keeping every penny. Unsurprisingly, they caught on fairly quickly to the idea that the used games market was where the real money was to be found and began promoting it aggressively (there’s a reason why they have their “three-for-free” sales, where you can trade in three old games for a new one – it is basically inventory expansion for them). Even more vexing, GameStop does not stock games more than a few years old, so their service is utterly useless to one of used gaming’s primary demographics: the retro gamer.

The frustrating part is that GameStop is now the only mass retail chain dedicated exclusively to video games. EBGames, Funcoland, and all of GameStop’s other competitors have all now either been bought out or gone bankrupt. As a result, GameStop is now the visible face of the used games industry, and the image they present is an ugly one. Used game sales do not generate any income for the company that actually made the game in the first place. As such, GameStop’s focus on used games is a drain on the industry, one which several development companies have vocally complained about.

Unfortunately, many of those same development companies took GameStop’s abuse of the market as a green light to grab the proverbial ball and take it 200 miles in the other direction.

We are now seeing all manner of subtle tricks being implemented into our games in an attempt to “encourage” us to buy new. Nintendo has arguably the gentlest approach, rewarding gamers with limited-time free DLC and allowing them to register their games online to earn points towards free gifts. For instance, people who bought Pokémon Black/White within its first few months of release got to download a free (and otherwise unobtainable) Pokémon. Similarly, buyers of Animal Crossing: City Folk receive a new piece of rare in-game furniture from Nintendo every month or two, and after the distribution period is over, that furniture becomes unobtainable. Some other companies use a variant of this method as well, offering free DLC and other bonuses that are only granted once, which means people who buy used don’t get the free goodies.

However, other developers have taken a distinctly more hard-line approach. EA now requires gamers to pay a $10 surcharge to play online multiplayer modes on their sports games unless they’re the first purchaser. Other developers, such as NetherRealm Studios and THQ, decided to follow suit and have started to implement the same scheme on their new games (most notably the remake of Mortal Kombat). However, it appears that Capcom has set the new “gold standard” in this category with Resident Evil: The Mercenaries 3D. It’s a game that can only be completed once – once you’ve finished it, you can’t wipe your save data and start over; you are permanently stuck with a completed 3DS cart.

The aforementioned policies put into place by EA, Activision, and Capcom are attempts to punish used game players and drive down the value of used games, thus simultaneously cutting into GameStop’s profits and nudging gamers back over towards the “New Games” shelf. Of course, GameStop and the other used game retailers aren’t innocent in this little tete-a-tete either and they have run some interference of their own. For example, a few years ago Sony announced the release of the PSP Go, a variant of the PSP that did not use physical media. Instead of using game discs, as previous models of the PSP had done, all games for the PSP Go were purchased digitally and downloaded directly from Sony. EBGames (now a GameStop subsidiary), along with several other major retailers, promptly refused to stock the console or any materials promoting it, a significant factor in the PSP Go’s poor sales.

Gamers have been quick to take sides in this ongoing struggle, with each side accusing the other of being greedy. The common mantra I often hear from those supporting the pro-DD, anti-used-game side of the debate is that it’s not fair that developers get nothing from used game sales. They are entitled to the profits from their own work and the continued permeance of used games is taking a huge drain on the industry.

I find myself somewhat on the fence. While GameStop is ample proof that there is such a thing as “too much of a good thing” where used games are concerned, I am also of the mind that used games – when handled responsibly – are not only not harmful to the industry, but are actually helpful. More worryingly, I think that this continued pissing match between used game proponents and development studios is having dire ramifications on our hobby.

Why would I say that? So glad you asked!

1) Used games are advertising

A few years ago, a friend of mine brought up a PS2 game he’d played and loved called Odin Sphere. He raved about the graphics, describing them as a lovingly rendered watercolour painting brought to life. His depiction, as I eventually learned, was completely accurate, and I daresay there was no more visually impressive game in the entirety of the last console generation (side point – if you ever get a chance, play this game; it’s incredible).

Of course, I was only able to find this out thanks to used games. I strolled down to my local games store and found a copy sitting amongst the used games. I picked it up, took it home, and loved it so much that I quickly noted the developer’s name (Vanillaware, if you’re curious) and did some research to find out if they’d released any other games. It turned out they had, so later that week I returned to the store to purchase Grim Grimoire (new) and a few months later I was a Day 1 Buyer of Odin Sphere‘s Wii-based spiritual sequel, Muramasa: The Demon’s Blade.

2) It encourages piracy

A lot of the measures being used to prevent used game sales – from DRM to game registration to limited-time DLC – are a nuisance to the people who play the game, first time buyers or otherwise. Gamers can be denied access to legally purchased games if their internet connection goes down (in the case of games that require online verification) or forced to pay fees just to unlock features that are available by default to first time buyers.

Of course, no one is happy to be caught on the wrong side of such protective measures. And, unfortunately for game developers, a sizable portion of their customer base is just as tech savvy as they are. Thus we see pirate operations spring up whose express purpose is to circumvent the features that are supposed to be forcing gamers to buy games new. Some of these pirate groups will deliberately target overly protectionist companies out of a sense of activism, as happened last year when Ubisoft’s validation servers were attacked and brought down by hackers protesting the company’s recent implementation of DRM on their new games.

Increased piracy benefits no one. The gaming industry loses profits, and gamers suffer under ever-more draconian measures implemented to combat the pirates. Even those who choose to support pirated games are saddled with the risk of virus and malware infection that comes with using illicit software.

3) Game quality suffers

Related to the above, most forms of “protection” against used game sales are implemented at the cost of quality. As a completist, I always find it tremendously frustrating when I purchase a game only to discover that I missed out on a special quest or piece of equipment that was only available for the first few months after the game’s release. Furthermore, features like online verification inevitably marginalizes those gamers who do not have access to reliable high speed internet connections (a distinct minority in the US, but more prevalent in other areas of the world).

Going beyond that, if I get interested in a game that is past its shelf life and that game happens to have “used game protection features,” I am now expected to either trek over hell’s half acre looking for an unsold copy somewhere (not easy if it was a popular game), or be stuck with an inferior version. Through no fault of my own – and no malicious intent towards the developers – I am arbitrarily barred access to some of the game’s content (sometimes I will be able to regain access – assuming I’m willing to pay a premium – while other times I will be simply SoL). Either way, my enjoyment drops as a result.

4) GameStop will be the last to fall (if it even falls at all)

Make no mistake, Public Enemy #1 of this little crusade is GameStop. It’s the company that is squarely in the crosshairs of the surging anti-used-gaming campaign, and the implicit end goal of that campaign is GameStop’s downfall. It is, in my opinion, a noble goal. But the problem is that GameStop is a huge international chain with deep coffers and plenty of customers; the attempts to drive them out of the used game business are going to claim a lot of casualties before GameStop notices an appreciable dent in its bottom line.

Personal anecdote time. My game store of choice is a little mom-and-pop store operating out of Calgary, Alberta called Video Game Traders of Canada. The staff are friendly and knowledgeable, and the selection is second to none – games, products, and rare collectables from every era of gaming are available. Though they sell new games, their real bread-and-butter is the used games market, since competing with GameStop and the other large-scale retailers on the new game market is almost impossible. As such, they focus on hard to find titles and even provide services like controller repair and console cleaning for old, worn consoles. VGT is a niche store, but one that does a tremendous job at what they do, and the goods and services they offer are unavailable anywhere else locally.

They also risk going under if the campaign against used games is successful. As I just mentioned, the new game market is dominated by large-scale retailers and there is next to no room for small, independent stores. VGT is not a unique institution; nearly every major city has at least one – and usually several – stores that fill the same niche role. Should the gaming industry continue in its attempts to shut down the used games business, these stores will similarly be forced to close down long before the campaign has an appreciable impact on GameStop, the store that’s actually doing the majority of the damage. And what happens then? The former customers of those stores will pretty much be forced to shop at the only place left in town: GameStop. This influx of new customers will largely insulate GameStop from any negative effects the used game crackdown might bring. Thus, while the campaign is trying to get rid of GameStop in theory, in practice they’re just going to get rid of everyone else.

5) Gamers (and consumers in general) are getting caught in the crossfire.

I’m going to pitch a few hypothetical scenarios at you here.

-You have some home improvements to do and, not being an avid handy man (or woman), you lack tools. You agree to borrow/buy some from a friend. The next day, both of you receive a letter from the Home Depot where the tools were bought threatening you with a lawsuit for breaking an agreement that came packaged in with the tools (that you were not aware of beforehand) stating that your friend was only buying the non-transferrable rights to use the tools, not the tools themselves.
-You decide to buy a car from a friend in order to save some cash. However, before you can drive it, Ford requires that you pay them a $5000 service fee or you won’t be able to use any gear above 2nd.
-You buy a new house from a land developer. After the sale, you are informed that you are not allowed to rent out or resell the house, even if you decide to move. You must either abandon the house with no financial compensation or continue to live there.

If you are a sane person, any of the above prospects sound completely ridiculous – if you buy something, it’s yours to do what you please with, including sell it. Yet, these hypothetical actions can all be justified by the same logic that the gaming industry uses; just like developers not seeing a penny from used game sales, housing developers don’t get any money after the first sale, car manufacturers get no compensation for used car sales, and the makers of tools, office supplies, and nearly all other physical goods only get paid for the first sale, not subsequent ones. Why should gaming be any different?

Unfortunately the courts disagree. Remember how I opened this article with a reference to an old court case where Nintendo tried to have used games and game rentals declared illegal? Well, various other companies have stepped up to the plate in years since and, through a plethora of legal approaches, have aimed for much the same result. Finally, in 2010, one of them succeeded. A seller on eBay was successfully sued by AutoDesk for attempting to sell his copy of the engineering software AutoCAD. The courts ruled that AutoDesk’s claim, that the seller in question had only purchased the non-transferrable rights to use the software and not the software itself, overrode the seller’s rights to resell his used goods under the First Sales Doctrine. It was a huge victory for software developers everywhere (including those in the gaming industry) and a massive blow to consumer rights. Although the ruling did not explicitly extend to gaming and the judges at least left a small window of hope by saying that future claims on the matter would have to be decided on a case-by-case basis, you can bet that video game developers were merrily jigging in their boardrooms at the announcement.

 

For centuries we’ve carefully honed a set of consumer rights that are now rapidly being eroded away, at least insofar as they pertain to gaming. With the rise of Digital Distribution and the demise of used games, each games developer suddenly becomes its own individual monopoly, and that’s bad news for gamers.

This campaign against used games has become something of a war of attrition, and no one is going to come out ahead. Gamers are having their rights marginalized, publishers are suffering under the ire of self-righteous nerds with enough technical savvy to make their lives miserable, developers are losing free advertising, retro enthusiasts are watching as their hobby gets pulverized, and retail stores are losing business. There are no winners in this fight, just those who have not lost as much as others, and that is why it needs to stop.

This brings us to an interesting conundrum. If I’ve convinced you so far that used games are an integral part of the hobby and that we would be worse off if they were to suddenly disappear, we are still left in an untenable situation. GameStop is still contentedly raking in piles of cash from used game sales and that money is not going back to the developers, where it could actually be used to improve subsequent games. What’s the solution?

Simple. If you can’t beat ’em, join ’em!

The car industry actually has the right idea here. Rather than losing huge swathes of business to independent used car sales, dealerships buy back used cars and resell them to other interested buyers.

It’s a brilliant business model when you think about it. The dealer gets to cut into their competition, make some extra money on the side from marking up sales, and the person selling their used car back to the dealer is likely looking to buy a new one, so the dealer may wind up with a new customer as well. The perspective from the buyer is similarly rosy: buying from a manufacturer’s dealership means they can have confidence that the car has been properly inspected and tuned, and dealerships frequently offer incentives to buyers to keep coming back to them for maintenance and upkeep. Everyone wins.

Gaming would do well to take a page out of the auto-industry’s playbook. Each console manufacturer could set up their own used game service where they offer to buy games back from their customers in return for cash, store credit, and/or special “points-based” gifts (similar to what Nintendo does already for gamers who register their new games), with the costs and profits of the system being shared by the third party developers whose games are being bought and sold. The developers get to make money off used game sales and control when and how many used copies can be sold, while the gamers get special gifts, the economic convenience that used games afford, and the confidence of buying from the original manufacturer – once again, everyone wins!

Sony obviously has a leg up on the competition in this department, having already created a retail store for themselves, but Microsoft and Nintendo could just as easily step up to the plate with mail-in services and/or a partnership with one of their larger retailers, such as Wal-Mart. The set-up costs would be substantial, but worth it in the end.

Almost all business/customer relationships are symbiotic in nature, and gaming is no exception; positively or negatively influencing one side of the partnership will affect the other in the same way. Thus, the war being waged against used games is ultimately self-destructive, benefitting no one. For the sake of our hobby, this witch hunt must be stopped.

One Comment

  1. Those are certainly valid points and I agree.

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