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- Title
GAME OVER FOR FIRST SALE.
- Authors
McIntyre, Stephen
- Abstract
Video game companies have long considered secondhand game retailers a threat to their bottom lines. Some companies are now experimenting with technological tools to discourage and even prevent gamers from buying and selling used games. For example, "tethering" technology suppresses secondhand sales by permanently identifying particular media items (such as video game discs) with a single user's device. This technology flies in the face of copyright law's "first sale" doctrine, which gives lawful purchasers the right to sell, lease, and lend DVDs, CDs, and other media. This Article answers a question posed by many commentators: whether it is legal to employ technology that restricts first sale rights. The answer hinges on two statutes: the Digital Millennium Copyright Act ("DMCA") and the Sherman Antitrust Act. The DMCA broadly protects technological measures that restrict access to copyrighted material, which would likely include technologies aimed at suppressing secondhand video game sales. If end users came up with a method for getting around these devices, they could potentially incur liability under the DMCA. However, some courts have interpreted the DMCA narrowly so as to allow circumvention that does not clearly lead to copyright infringement. Since accessing the content on a video game disc or other similar media does not constitute infringement, this construction of the statute would most likely permit users to lawfully circumvent restrictive technology. Moreover, technology that abridges first sale rights may violate the Sherman Act, which prohibits monopolists from acquiring, maintaining, or extending their market power through predatory or anticompetitive means. Antitrust would be a fitting remedy; the first sale doctrine is intrinsically linked to antitrust jurisprudence. Courts recognize the importance of secondhand markets, and have held that monopolists may not use technology to suppress competition. However, the difficulty of demonstrating that any company possesses monopoly power in the relevant market could be fatal to a Sherman Act challenge. Given these doctrinal complexities, it may ultimately fall to consumers to vote with their wallets and choose not to patronize companies that engage in business practices that abridge first sale rights. Otherwise, it really could be "Game Over" for the first sale doctrine.
- Subjects
VIDEO game industry; VIDEO game equipment; VIDEO games; COPYRIGHT of audiovisual materials; UNITED States. Digital Millennium Copyright Act; UNITED States. Sherman Act; MARKETING
- Publication
Berkeley Technology Law Journal, 2014, Vol 29, Issue 1, p1
- ISSN
1086-3818
- Publication type
Article