Does Sony's New Patent Signal the End of Second-hand Games?

The Tokyo branch of Sony Corp. (creators of the Playstation 3 gaming system) filed a U.S. patent application in December 2012 for technology which would effectively put an end to second-hand game sales.  The problem with second-hand “resell” games is that Sony doesn’t generate any income from the transactions.  The patent application theorizes a method which would limit a game to a single Playstation device or account.

The patent application provides that when a game is purchased, the medium itself (game disk) would contain a unique identification tag which would be read by the reproduction device of the gaming system (Playstation 3 for example).  The first time the disk is inserted into the gaming system, the reproduction device would record the disk ID and player ID, and use an authentication process to confirm that the combination satisfies Sony’s terms of use.  If the combination of IDs does not meet the terms of use on any subsequent use of the game, the game will not start.  The effect of the technology would be similar to having a single licence for the game and will not require internet access to work.  This process nullifies any resale value of the game (unless you sold the system at the same time).

It is worth noting that this isn’t the first tactic the game developers such as Sony have employed to try and limit the resale of games.  In the past, Sony has attempted to employ the use of passwords to unlock games, but was unsuccessful as passwords could be shared between first-time buyers and subsequent ones.  Online passes, which limited online play to the first online user of a game were also less effective because they could not limit offline gameplay.  One method that I experienced first-hand was a bar-code on a game package which prevented resale to commercial businesses such as EB Games.  The newest tactic by Sony creates a stronger protection by introducing protection measures into the hardware and essentially marrying game disks to game systems.  This would prevent any second-hand user from playing the game in any capacity.

Despite the effectiveness of the method described in Sony’s patent application for preventing the resale of games, there are some obvious unintended consequences of this process.  The first absurd result occurs in a situation where a game system is irreparably damaged.  As inconvenient as having to buy a new system can be for gamers, if Sony adopted their game to a system marriage method, it would effectively require gamers to purchase new copies of all of their games in the event their system broke down.  It also potentially eliminates the commercial rental market since a game disk will be permanently married to the first system it is played on.  And though it may be possible for Sony to address these problems in some way, doing so will either be burdensome on the consumer or diminish the effectiveness of this new protection method.

The new applied for method also greatly affects the rights of consumers.  The history of the gaming industry until this point has been that games can always be sold, given away, or shared after initial purchase at the whims of the initial purchaser.  That expectation through past experiences of the gaming community is also reflected in the copyright laws which apply to games.  One of the fundamental principles of copyright is the first-sale doctrine (US Copyright section 109) which states that the holder of exclusive rights to sell copies only has that right in-so-far as the first sale of the copy.  And while the new protection measure doesn’t technically violate the US Copyright Act (you could still sell a disk for zero value), the protection does violate the purpose of the copyright system.

Even if a court would disagree that the first-sale doctrine is violated by this patent, there is a simpler reason why the gaming community shouldn’t worry about this patent.  That reason is that Sony would have to offer this technology to its competitors in order to affect the gaming industry as a whole.  If they do not, then consumers will be given the option of purchasing a Sony system, which has these restrictions, or a competitors system (ex. Microsoft system) which does not.  Since many modern games are produced for multiple systems, Sony’s new protection process will likely hurt their sales.  Sony also has a number of patents on products that were never introduced into the market therefore it’s possible that this protection patent will never be anything more than theoretical.  As a result, I doubt the gaming community will need to worry about the widespread adoption of the method described in Sony’s patent application any time soon.

Adam Stevenson is a JD Candidate of Western University, Faculty of Law.