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Penny Arcade Turns Traitor: Says Used Game Purchasers "Pirates"

by Christopher Harbin

I’m stark raving mad right now.  I’ve never been much of a hot head.  And over the years my old age has tempered my immediate reactions, but I went from Calmsville to Livid City after reading Penny Arcade’s latest comic without so much as a stopover at Smoldering Anger Junction.

The comic was commenting on a new trend in video games.  Recently, game publishers have locked more and more content that was traditionally included in a game behind an online pay wall.  For example, earlier this year, EA Sports started preventing those purchasing used games from playing online by including a one-time use code inside new packages.  Some publishers have even put content included on the physical media behind a pay wall.  So you have to pay someone to get at content on the disc.  I have no doubt that you will soon see console publishers putting the entirety of their content behind a one-use code.  For years, PC gamers have had to engage in various workarounds to sell their games.

Copyright – particularly the first-sale doctrine – looms over and informs every part of this discussion.  See, when you buy a work, under the Copyright Act, you own it.  You’re entitled to do what you please with it.  You can burn it, resell it, keep it, devise it, trade it, or gift it.  Just like the rest of your personal property.  Underpinning every publisher’s shady little move with respect to digital goods is the veiled threat of bringing down the mighty beast of copyright infringement upon those that defy them.  I have pounded the table on this subject before, but copyright owners view copyright law as an understanding only between themselves and the government – consumers, that is the public, be damned.  Remember, just three years ago the RIAA maintained — in court — that consumers have no right to rip their CDs onto their MP3 players.

And Penny Arcade buys into this paradigm hook, line, and sinker.  The gist of their latest comic – and the narrative that accompanies it — is that purchasers of used video games are not customers of the publishers.  While this is sort of correct – used games don’t put money directly into publishers’ coffers – it’s not actually correct.  Which we all know is the best kind of correct.  Let’s get at this from another industry:  auto sales.  One reason people buy Hondas, Toyotas, and Volvos is that they hold their resale value better than other comparable vehicles.  Thus, at the original sale, they command a premium price.  So it’s obvious that producers do in fact see value in used car sales.  DeVoy sums up the criticism to Penny Arcade’s shoddy argument best: “Only idiots think they buy products from their producers, LOL!”  Indeed, DeVoy.  If game publishers are worried that they aren’t getting a “fair” cut of used game sales, they can do what every other industry does.  Price it up front.  Let the market decide.  They should not be able to wield the mighty sword of copyright law in a way other industries don’t get to do.

Tycho even goes so far as to say that those who buy used games are pirates.  I find this kind of rhetoric wholly disingenuous – especially coming from Tycho who often prides himself on distilling substantive wheat from the rhetorical chaff.  But here Tycho has completely failed and comes off looking like an industry shill.  When one buys a used car, have they burned and pillaged the auto industry?  Why should video games be treated any differently?  Don’t even bring up the fact that digital goods don’t physically degrade:  1) even MP3s degrade after many copies; 2) under copyright law you aren’t allowed able to keep a copy and transfer a new one to another – that’s infringement and; 3) books that are kept well physically degrade far after the economic value has been extracted.

Tycho and Gabe are by far some of the smartest and most engaging commentators on the games industry, but their latest comic is a prime example of what happens when quasi-journalists become too close to their industry.  Tycho even admits it:  “You meet one person who creates games for a living, just one, and it becomes very difficult to maintain this virtuous fiction [that buying a used game isn’t piracy.]”  They start putting faces to products and thinking of the little beating hearts in cribs inside the homes of developers.  It’s certainly a noble thought.  But in propagating this logically-flawed and rhetorically-misleading argument they cosign big media’s efforts to erode our rights.  Shame on you, Penny Arcade.

Update:  The always brilliant Bill Harris takes a more tempered view

Cyberblogging soulmate Mike Masnick hit this issue about 9 seconds before I did.

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