Penny Arcade and Used Games: Legality & Morality

Penny Arcade and Used Games: Legality & Morality
The eternal debate hits home.

Full disclosure, I’m a little uncomfortable writing this. I like reading Penny Arcade, I’ve met the people-shaped components that make up the now monolithic P.A., definitely enjoy their company, and frankly, I just plain like getting along with people. Dissonance is upsetting on a fundamental level, especially when it’s made out to be an issue of right, or wrong. What can I say, I’m feeling a little masochistic.

Most of the time when people put their opinions on the Internet, it’s a relatively silent affair. There is rarely thoughtful response, less often dialog, and only occasionally the merest ripple of permanence. Unless you’re, well, kinda famous. Then you get people like me, reading things like that, and writing stuff like this. It’s even possible that Jerry wrote his post sometime in between showing up to the office and being slammed with pre-PAX crazy ten minutes later. Those guys are busy, and odds are there’s more he’d like to say on the topic. So here’s my ten minutes, wedged in between N4G and bedtime:

In his post, Jerry states that he “honestly can’t figure out how buying a used game was any better than piracy”. He goes on to posit that a game purchaser is a customer of the developer/publisher by purchasing new, and when purchasing used they become a customer of the retailer. The latter assertion is misleading: unless you are somehow buying directly from a developer you are a customer of the retailer from the get-go: the retailer purchases from the publisher, and you purchase from the retailer.


Furthermore (and oh, what a furthermore it is), the notion that you are buying new directly from the developer and that this is somehow more right makes it weird for the consumer to price-shop. Does one game retailer offer a game at a buck less? If it is an issue of more rightness to support the developer as much as possible by getting as much of your money from your pocket into theirs, then price shopping is less good than spending as much money as possible on the product, because if you are acting as a customer of the developer you are robbing them of those dollars – and that is truly bizarre.*

However, that’s not the case. The price you spend on a game new does not directly affect the developer because the game has already been purchased from them. Again, the retailer acquires the product from a publisher, and consumers purchase from the retailer. The publisher of the product has already sold, say, 100 copies of the game. The retailer is out the money and wants to move those items, new and at the highest price possible because doing so nets them the most profit. At no point in this process are you a customer of the developer. Can you imagine going to Best Buy and calling up Naughty Dog or Sony to complain about your retail experience picking up Uncharted 2? That would be weird for everyone. Don’t do that.

THQ’s scheme, a catalyst of sorts for Jerry’s post, implies that there is a kind of multi-player fee built in to the purchase of their titles, that when the retailer acquires these games they are paying the publisher this fee for each game, a Multi-player Tax! It follows that that fee must be recouped by THQ upon resale or they will suffer adverse financial conditions. However, there is no additional load on their servers. A game once bought and once resold still only adds up to one game at a time, sort of a you cannot create or destroy matter thing. The server(s), the infrastructure needed to support the game, is based upon the number of copies of the game in circulation – not whether those games change hands – and the number of copies in circulation begins when the retailer purchases from the publisher. Then, when it’s no longer financially viable to maintain the infrastructure, the servers close down.

THQ’s proposition is not an issue of wrong or of right, it is an issue of dollar signs and bottom lines. It is a punishment of sorts, certainly a disincentive: you should just buy it new, because it’ll be less of a hassle. I’m not certain the market will bear it, but THQ’s suggested model (even if a perceptual punishment) is not immoral, nor is it illegal. Of course, neither is buying games used.

So, in answer to “how buying a used game was any better than piracy”, it’s legal. Legally, there is nothing to keep you from reselling your copy of a retail game. There’s no doubt that the likes of software have made things like intellectual property law tricky. Try not to let your eyes glaze over, I’m going to mention the first sale doctrine, but I’ll make it Band-Aid quick! According to the first sale doctrine once you buy a copyrighted item the author of that item can’t, through copyright law, stop the resale of that item. Copyright covers the right of distribution, if it extended beyond distribution the copyright holder could retain control of the item.** The model is such that manufacturers can recoup their losses and acquire profits from the first sale of a product, and after that it’s all retailer gravy.

Idly, I wonder where the guys land on buying classic games and systems. If you find an Atari 2600 or a stash of NES games at a garage sale, do you pick them up? Do you write a check to Atari and Nintendo? Hunt down the game developers? This is a large part of why the first sale doctrine exists: manufacturer’s tracking an item past the point of sale isn’t sustainable.


It should strike you at this stage that there is benefit to be had on the retailer side, and I think it’s that potential that ruffle feathers. That games fetch a higher initial dollar than many frequently resold items (think clothes, books, CDs), and have reasonable volume, is a factor in this burgeoning market. Retailers buy an item, then they sell it for profit. They buy back that same item, they resell it for profit. If the publisher can devise a way to snag a piece of the revenue that comes from secondary sale, then they should get on that, but it is not the responsibility of the consumer to work that out for them anymore than it is to put as much money as possible in the retailer’s pocket. This is a publisher-retailer relationship and issue, and they do what suits their pocketbooks. Publishers want their games in retail. If they didn’t they would sell them independently, but they don’t, because they make more money with the games in retail. Retailers could sell only new games, but they don’t, because they make more money selling new and used games. Consumers could only buy new games, but they don’t because they can save money by buying used games. Why, then, in this chain should publisher, retailer or consumer be cast in morally unflattering light? It seems the situation is, at present, pretty darn symbiotic while still retaining that combative ferocity so characteristic of worldliness.

Yet the Penny Arcade discussion goes beyond legal yes-and-no and economics into semi-sanctimonious turf about buying games like it is a moral issue, and we’re not even talking about “ethical consumerism”. Is this born from the fact that Mike and Jerry no longer face the kind of budgetary concerns that initially drove their used game participation? That unlike back in their heyday of selling and buying used, they now can afford not to? The imperative that you should buy a game new because it is morally right is untenable.

Really, I mean really, this recent post from Penny Arcade gets me all twitchy because it seems to represent so much more, a harbinger of sorts in the Penny Arcade brand, an Us-Them divergence that has Penny Arcade defecting to Them, taking the side of “the industry” when it adversely impacts “gamers”. I respect the organization, from things like Child’s Play to PAX – and that PAX is as affordable for the gamer as they can make it without just throwing everyone into a pit of electrical outlets and surge protectors and calling it a day. I don’t want this to slip away.

*What about rentals? Or, if you want to open a whole other can of worms, what about price fixing? Games are, by-and-large, sold at an identical price point regardless of development costs. Sometimes thoughts are like endnotes, cluttering up space.

**Hey, bootleggers***, take note: illegal reproduction of a purchased item is not covered under first sale doctrine. That’s still illegal reproduction.

***Yeah, I insist on calling them bootleggers. I think comparing a non-violent criminal to a violent one is disingenuous. I also put a footnote in an endnote, which is a different kind of non-violent crime.

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