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DuckReconMajor

How is buying used legal?

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Well, since the thread I asked in got helled I'll ask here.

I never understood why buying Doom engine games used is considered the legal way to obtain some of these games. The previous owner probably still has it on his computer, and the creators still get nothing. You're just putting money in some guy's pocket who decided not to keep the disc around.

P.S. Congratulations Graf Zahl on 5000 posts.

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Well I guess you just have to trust the seller on things of that matter. Then again you can still buy PC Doom from so many places (Id's site or Steam) that you really shouldn't even need to buy a copy used. If a hard copy is what you are looking for, I think you still might find the Doom collector edition set in places like Wal-mart or Best Buy, which isn't used.

Buying console Doom games used is a completely different matter however. As most of the time the seller can't make a copy for them to keep, and the company doesn't really endorse the game anymore.

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When someone buys a game in the first place, they are buying a license to use the software in addition to any disk, box, manuals, etc., that the package may contain.

When you buy the complete boxed game off someone second-hand, you are also buying that license off them. If they have kept a copy of the software and continue to use it, then they are acting illegally. It's analogous to buying a book, record, CD or DVD second hand.

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This reminds me of the humongous hissy fit that Cliff Blezinski had over the PC release of Gears of War 2 where he demonized PC users and said that they should've required people who bought the game secondhand to pay $20 by credit card right before the final boss. It made me lose my respect for Epic Games as a design company. You want to be a console dev? Go ahead. Don't let the PC market's door hit your asses on the way out.

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The existence of that download doesn't change anything about the laws. The concept of 'abandonware' does not exist in that contents and without the copyright holder's authorization such distribution is illegal - even if nobody cares.

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It's kind of scary that you're even questioning if it's legal. If you buy a game, of course it's legal to sell it. The material on the disk is copyrighted, but there's no reason why you can't sell it and the box it came in on to someone else if you want.

Of course, if it's a game like HL2 that is distributed via Steam, the disc won't be of much use, because the buyer would also need your Steam account to be able to use it.

I dare say this kind of thinking - that people don't own their own physical possessions - is the sort of thing that copyright lawyers have been wanting people to accept for years.

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Never_Again said:

Is still a crime until it's decriminalized. And given the way the wind is blowing nowadays in the copyright,-author's-right-and-intellectual-property field, it's not going to be decriminalized any time soon. Who cares if it's not distributed anymore? You don't have the copyright, you don't have the right to copy. Pretty simple. Copyright == right to make copies. If you make copies without having the right for it, it's counterfeit (though RIAA, MPAA and others are trying to claim it's theft because it's a simpler term, more common and emotionally stronger, even if inadequate).

Who cares that the copyright holder no longer exists? Then it means that nobody has the right to make copies.

Until it lapses in the public domain, which happens at the soonest -- as far as software is concerned -- a half-century after the last surviving copy has degraded to the point of being unrecoverable, and the last computer that could run it had been recycled twenty years ago anyway.

The law doesn't care that early software are being lost forever because it is inadequate to frame the software domain's realities. It doesn't care that early works of art are being lost forever. "Abandonware" and similar concepts that are devised partly to preserve old computer games have no legal justification. It sucks, but that's the way it is.

Also, what fraggle said.

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Buying used is actually an interesting loophole in this whole "you only buy the license to use shitty item #XXX, you don't own it" thing (which some companies tried to extend to hardware, as well). I bet that some contracts or EULAs explicitly forbid this sort of "used market" or would require going through loopholes to lawfully e.g. change the legal owner of a registered copy of Windows XP.

I mean, come to think of it: even manufacturers of material goods that eventually wear out and have to be replaced frown upon the used market, what would those trading immaterial intelectual property do? OK, there are some special subcases like collector or special/rare editions of movies, records, books etc. but those have a definite material value to themselves.

Immaterial goods can be traded for little or nothing, and, from the point of view of e.g. record label, what's the difference between selling someone a used CD or even an used cassette or a run-of-the-mill vinyl record for $20, for a dime, or even for free (and yeah, this eventually boils down to warez)? None. The law however (at least where there are still reasonable ones not fucked up by the DMCA's and RIAA's lobbying) completely legitimizes a one-to-one trading, selling, or even donation, as well as making copies for personal use.

So A donates game/album X to B, B makes a copy for personal use, B hands X to C (not a copy though) and so on. At least where I live, the above passages are all legal, per-se, as long as there is no clear personal profit.

Then again...what if everyone sold it even for 1c more than what he bought it? Or what if someone actually got it for free as a legitimate donation but decided to sell it for money anyway?

Or, to phrase it in a way that will appeal more to law students:

Can a sequence of individually legal actions be illegal?

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Maes said:

So A donates game/album X to B, B makes a copy for personal use, B hands X to C (not a copy though) and so on. At least where I live, the above passages are all legal, per-se, as long as there is no clear personal profit.

Down here a transfer of licence from B to C would require B to delete/destroy his "personal use copy", it's continued existence would be regarded as a "personal gain" even if no money's changed hands.

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GreyGhost said:

Down here a transfer of licence from B to C would require B to delete/destroy his "personal use copy", it's continued existence would be regarded as a "personal gain" even if no money's changed hands.


Here, too. Although in Germany this only applies to software, not to music. If I sell a CD keeping a copy on the HD would be ok with the current law. Obviously the record companies are lobbying to change that.

Regarding this discussion I wonder, are the Pirate Parties that seem to rise everywhere are just a temporary phenomenon or the beginning of the end of this kind of corporate extortion.

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GreyGhost said:

Down here a transfer of licence from B to C would require B to delete/destroy his "personal use copy", it's continued existence would be regarded as a "personal gain" even if no money's changed hands.


True, although not all EULAs explicitly state that any and all personal copies made must be destroyed afterwards (most do now though, and it's essentially an attempt to give a material aspect to something that is naturally free of it, at least as long as home copying/dubbing will be legally allowed).

Then there's the grey area of "borrowing to a friend" without making copies, but preventing a purchase/a rental/whatever. This can affect even material goods to an extent (try before you buy), although someone that liked a movie or videogame that he watched/played over a weekend is less likely to buy it than someone that e.g. borrowed his neighbors lawnmower and decided that he needs one of those too.

There's also the even more murky area of "making one copy for a friend", implying that there's no profit whatsoever because it's:
a) one -but they could be more than one too
b) for a friend -thus, not someone I'd treat as strictly business (BTW, if anyone treats his "friends" that way I wouldn't want him as "friend" :-p)

I recall I had asked a practicing lawyer (where I live though, that's Greece) years ago and said that both of these steps are legal, although I didn't ask her the specifics. I'd make an educated guess that this sort of capillary copying is not even small fry, if compared to organized warez groups, street peddlers, "software clubs", pirate copy factories (yes, factories) etc.

Again, it boils down to a sequence of individually legal actions, whose sum/end result is apparently illegal or causing undesirable loss of income to a party, which I don't know if it's even a legally admissible thesis.

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You're overcomplicating this. When you sell or give away a product, you are selling or giving away the right to use it*. Keeping and continuing to use a copy of it after that point is not legal, so your whole question about a series of legal actions isn't relevant.

I'll close this thread, because such discussion is generally fruitless, and inevitably leads to warez links (one already deleted from this thread), requests, etc.


* Unless, as fraggle points out, the EULA prohibits that, in which case you're taking money off a sucker - the fact remains that there is still only one legitimate license owner after the transaction.

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Grazza said:
I'll close this thread, because such discussion is generally fruitless, and inevitably leads to warez links (one already deleted from this thread), requests, etc.

Well, I had something to say (which makes me feel others might still, as well.) Besides, stopping the discussion has its bad side effects, too, if keeping it open can help people drop misconceptions by discussing the topic, and we do have specially designed torture chambers for people who post warez links :p

What it says in licenses about not being able to sell the software only really applies to selling copies of the software (the information) and not on selling the original product second-hand. When you buy a book you don't own the literature, either, as that "ownership" is copyright, only the copy carrying it. You do own the copy, materially. Companies might try to argue otherwise, but you can expect them to lose the argument (but not always).

Maes said:
So A donates game/album X to B, B makes a copy for personal use, B hands X to C (not a copy though) and so on. At least where I live, the above passages are all legal, per-se, as long as there is no clear personal profit.

B commits copyright infringement unless he or she deletes or destroys any copies when he hands X to C.

Note that not all countries have the same laws regarding copyright infringement. In some, copying or downloading copyrighted software under certain circumstances may not be punishable.

Then again...what if everyone sold it even for 1c more than what he bought it? Or what if someone actually got it for free as a legitimate donation but decided to sell it for money anyway?

Check this out.

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myk said:

B commits copyright infringement unless he or she deletes or destroys any copies when he hands X to C.


Yup, see my reply to GreyGhost above. However this catch is usually omitted (without justifying the act) when discussing about the right of making copies, and I'm sure older EULAs (for software) didn't even mention it. For home music and movies, well .... let's say they never swallowed it ;-)

Plus, this sort of personal-scale "copyright infringement" was never punishable AFAIK (also because it was/is hard to detect, almost impossible to control/limit, and it probably would be legally pointless, the "not even small fry" case I mentioned above).

myk said:

Check this out.


As usual, it all boils down to existentialist nitpicking of the law (in this particular case, if he had the right to do this with "gifts"), and the "winner" will be the one that finds the most loopholes or is just capable of throwing more resources at the lawsuit, if no definite/satisfactory verdict is reached. The only difference between that guy and friendly swappers, is that he openly went and trumpeted his "merchandise", which set off several red lights.

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Maes said:
However this catch is usually omitted (without justifying the act) when discussing about the right of making copies, and I'm sure older EULAs (for software) didn't even mention it.

The right to make copies for personal use already exists in copyright practice. That's one of those cases where the license is just enumerating a right you already have. If I photocopy a book I bought to underline, annotate or mark passages in it because I don't want to degrade my original copy, I'm pretty sure my action will be accepted as fair use. If instead I hand that copy to my neighbor, I'll be committing copyright infringement.

As usual, it all boils down to existentialist nitpicking of the law

As opposed to divinely affixed laws followed to the letter in an ideal world?

(in this particular case, if he had the right to do this with "gifts")

Various products have a "for promotional purposes only" notices that are meant to stop their commercialization, but as we can see, in the US that claim is of questionable value due to certain (first sale) rights people have.

The only difference between that guy and friendly swappers, is that he openly went and trumpeted his "merchandise", which set off several red lights.

If you mean people that swap copies of the products they bought, no. There is a real difference here. This guy was just selling existing copies made by the copyright holder.

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myk said:

As opposed to divinely affixed laws followed to the letter in an ideal world?


Laws are usually man-made. Divine? Hardly, unless you're willing to believe what other men that "divinely" self-appointed themselves as your "betters" say.

That being said, I've yet to see even a very simple, non-ambiguous law not being challenged or bent by a skilled or unscrupulous lawyer, by exploiting loopholes, other laws etc.

In my country for instance, many times motorists won road accident cases vs cyclists even when the cyclist was badly crippled due to the motorist's negligence, thanks to an otherwise inapplicable law that required bicycles to be individually registered as road vehicles and their riders to have a license, which ofc. were impossible to practically obtain. So all cyclists came off as wrong, until this anachronistic law was abolished.

myk said:

Various products have a "for promotional purposes only" notices that are meant to stop their commercialization, but as we can see, in the US that claim is of questionable value due to certain (first sale) rights people have.


Same as before: an obscure law that comes biting you in the ass out of the blue, and which a skilled lawyer won't let unexploited.

myk said:

If you mean people that swap copies of the products they bought, no. There is a real difference here. This guy was just selling existing copies made by the copyright holder


There may be a law here that dictates that discs, books etc. are "licensed" without the licensee having ownership (the owner-possessor dichotomy) like it's possible with other things e.g. a rented house, only that in the collective imaginary it's not so obvious: e.g. it's obvious that you don't own and can't resell a car or a house you are renting, and in general there are restrictions to what you can do to/with it, compared with something you fully own. Extending it to a low-cost and trivial object (such as a disk or booklet) is not immediate however, especially when you don't sign contracts of sorts, like in the case of houses and cars for rent.

The average grunt will just reason with "WTF are you talking about, I have the disk, therefore I own the disk, it's in my hands right? They can't come and yank it off my hands now that I own it, right?".

In fact, I too doubt that they could come and physically claim the disk back (perhaps they could ask you to erase it, if applicable, if they only have total ownership over the contents, but very few people would comply with physical alteration or destruction of an object that, to all effects and purposes, appears to be in their ownership. The only example of a trivial object that you don't own I can think of are the phones supplied by the phone companies: in case of a recall, you're contractually expected to hand it in, among other restrictions.

With "free" disks and promo products however, there's this grey area regarding the physical part of the product: the tough part is selling the physical product when still carrying the controversial IP with it. IP is protected by laws, but is the physical part protected too? Under what conditions?

If it was a promo cassette or floppy I could probably erase it and sell it as a blank with no IP infringement whatsoever, or sell the paper from the packing as fuel, as long as I don't trade the "intellectual" part of the product.

P.S.: now that I think of it, the record's label claim that they "owned" the copies and thus can't be resold would also imply that none of their records can be resold, promo or not (unless those implicit record "EULAs" specifically allow reselling store-bought, original "non-promo" material). I can understand the record company getting upset with a store that illegally sells promos, but what about a flea market? Or a backyard sale? (both are examples of black/grey economy, but a registered store would be a much worse offender than a private doing a limited sale on a personal scale).

Usually promos have a "not for resale" clause on them, while normal albums have a generic copyright warning, with neither going into details. In either case, it's not something you'll have to deal with normally, unless you stomp on the wrong feet.

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Maes said:
Same as before: an obscure law that comes biting you in the ass out of the blue, and which a skilled lawyer won't let unexploited.

What law? On the contrary, the copyright holders tried to limit the use of the materials, basing their motion on what they had claimed the product was for (promotion only and no commercialization), but that was denied due to the first sale doctrine.

There may be a law here that dictates that discs, books etc. are "licensed" without the licensee having ownership (the owner-possessor dichotomy) like it's possible with other things e.g. a rented house, only that in the collective immaginary it's not so obvious: e.g. it's obvious that you don't own and can't resell a car or a house you are renting, and in general there are restrictions to what you can do to/with it, compared with something you fully own. Extending it to a low-cost and trivial object (such as a disk or booklet) is not immediate however, especially when you don't sign contracts of sorts, like in the case of houses and cars for rent.

In Greece? Generally speaking, the licenses in software do not refer to any such law. They try to claim something more restrictive than usual copyright because they are paranoid that their digital information will be copied (since it's very easily done.) A license is not necessarily legally enforceable. It's the way a copyright holder demands his product be treated, disclaims against liabilities and protects interests. That's still subject to the law, which can invalidate parts or uses of a license.

The average grunt will just reason with "WTF are you talking about, I _have_ the disk, I _own_ the disk, it's in my hands right? They can't come and yank it off _now that I own it_, right?".

No. That "average grunt" is correct.

The only example of a trivial object that you don't own I can think of are the phones supplied by the phone companies: in case of a recall, you're contractually expected to hand it in, among other restrictions.

That's a lease. The cable company leases the modem I'm using. I'll have to return it once I renounce their services. But software copies are generally not leased. If the copy were leased the company would in fact take it back after a time or condition. It is sold. That's what one of the cases I linked to above resolved.

With "free" disks and promo products however, there's this grey area regarding the physical part of the product: the tough part is selling the physical product when still carrying the controversial IP with it. IP is protected by laws, but is the physical part protected too? Under what conditions?

Wrong. Read what you reply to. You can indeed sell such an item, with all its copyrighted data included (at least in the US and many other countries with similar copyright laws.) What you don't own is copyrights but you do own a specific copy.

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myk said:

What law? On the contrary, the copyright holders tried to limit the use of the materials, basing their motion on what they had claimed the product was for (promotion only and no commercialization), but that was denied due to the first sale doctrine.

Maes said:

With "free" disks and promo products however, there's this grey area regarding the physical part of the product: the tough part is selling the physical product when still carrying the controversial IP with it. IP is protected by laws, but is the physical part protected too? Under what conditions?


Wrong. Read what you reply to. You can indeed sell such an item, with all its copyrighted data included (at least in the US and many other countries with similar copyright laws.) What you don't own is copyrights but you do own a specific copy.


I thought we were referring to promo disks, which I then acknowledged that they always have this explicit, small lettered "not for resale" or "only for distribution with magazine X" clause, which however in the case of the UMG vs Augusto case clashed with this "first sale" right (which figuratively speaking, was the one biting UMG in the ass out of the blue). I guess that falls into your subcase of a license with legally unenforceable/problematic aspects, at least in that particular jurisdiction.

In any case, UMG's lawyers thought that there was enough legal basis to challenge the physical sale of the promo albums, (with annexed IP), although they apparently lost the first round. So at least their thesis that you don't even own physical copies was ruled out as bogus, for now. This will create a problematic precedent for other cases though, unless physical promo copies are different than non-promo ones.

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Maes said:
So at least their thesis that you don't even own physical copies was ruled out as bogus, for now.

They claimed two things. As an aside, what you are saying; that idea where items with data aren't sold or given but licensed, which apparently had no effect. It's arguably rhetoric to try to avoid established laws. The transaction is like that of a sale or give-away (of the CD) and giving it another name doesn't change that. Primarily, they were defending the idea that the guy had no right to resell the items because he hadn't bought them or paid for them. But the first sale doctrine includes all sorts of legit acquisitions of items, including gifts you didn't pay for or items you bought second-hand. After all, the resale price of an item does not really depend on the original price. Some stuff is worthless for resale, some much cheaper than it was originally and some is more expensive (such as collectors items.) The resell price, if any, depends on supply and demand, not on how much you paid the maker for the now used item. Either will independently be from a lot to nothing.

This will create a problematic precedent for other cases though, unless physical promo copies are different than non-promo ones.

Why would it set a problematic precedent? The first sale doctrine certainly applies to commercial copies. What was in dispute was whether it also applied to promotional ones.

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myk said:

Why would it set a problematic precedent? The first sale doctrine certainly applies to commercial copies. What was in dispute was whether it also applied to promotional ones.


I meant not necessarily limited to sales: it will mostly set a precedent that it's not actually true that you can't do anything you wish with certain items that were from time to time considered "licensed" (in their manufacturer's view) rather than "owned" (in the usual end-consumer sense).

In particular anything formerly covered by the DMCA (or rather, by DMCA-like speculations) could be disputed (e.g. in theory you can't open up and hack a DVD player, because you are only "licensed to used it for playback of movies, and nothing", and you have no business looking and poking at the "IP sensitive" gizmos inside).

An example is the infamous CueCat hacking case, where out of the blue the manufacturer pulled the "Ya know, you don't actually own it" card.

The fact is that from time to time, companies try to pull the "you don't own it" card on various matters, when there is no clear legal way to safeguard their interests. Understandable for pure IP property (music, films etc.) but much less so when it comes to physical embodiments of said media, and actions that do not involve outright copyright infringement (like selling pressed, legit copies of promo albums in this case).

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That's something else. They made some laws to prohibit or punish hacking and copying products with data protection. Selling used items is another matter, handled by other laws. With copyright itself you already have a case where you can own an item yet not do "anything you want" with it. You can't make copies and distribute or sell them to the public. This applies to a music CD, a book or a program. Incidentally, those DMCA protections are related to copyrights, as they are there to ensure you won't make copies or do stuff other with the data.

The fact is that from time to time, companies try to pull the "you don't own it" card on various matters, when there is no clear legal way to safeguard their interests.

It's usually a pointless thing to do if you're giving an item indefinitely to someone for a price, which is a sale. In other cases, such as digital distribution, you really don't buy something. It's more or less a service, akin to seeing a show on TV or at an establishment.

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I know I am new here to the Forum but this Topic caught my eye.
Recently there was a Case in the local paper of a Kid inheriting his Fathers Storage unit with a Crap load of Floppys with the Doom Shareware version on them they were LEGAL original copies. The Kid decided to pass them out at the Gaming store we frequented at the Store managers Blessing and then the Police Came and ARRESTED him, the poor sod is now sitting in a Pittsburgh Jail waiting trial because he was illegally contributing copyrighted material. I mean if it is illegal why are we still allowed to legally download said shareware files?

The Other issue of "free" things falls under the content released on "free" Rpg day at my local game store the flyers and what not claim after you enter and pay your ticket for the event you are to get Item X for free for coming, then you find out you Also have to pay 30-40 dollars for said item which says NOT FOR SALE OR RESALE Free participant handout yet when contacting the company about this error i am told

Dear XXXXX,
The Free RPG day supplies we sent to your local brick and mortar are actually free for the store to get Not for you the participant, you will still have to pay a Nominal Fee.

Gotta Loath Corperate America... where i build a Deck in my back yard and it seems I Don't own it or have the right to say its mine..

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azureace said:

I know I am new here to the Forum but this Topic caught my eye.
Recently there was a Case in the local paper of a Kid inheriting his Fathers Storage unit with a Crap load of Floppys with the Doom Shareware version on them they were LEGAL original copies. The Kid decided to pass them out at the Gaming store we frequented at the Store managers Blessing and then the Police Came and ARRESTED him, the poor sod is now sitting in a Pittsburgh Jail waiting trial because he was illegally contributing copyrighted material. I mean if it is illegal why are we still allowed to legally download said shareware files?


Uhhh. This sounds like bullshit to me. It doesn't matter if they were "original" copies or not, it's Shareware. He is in every legal right to distribute them as long as the appropriate files are included and unmolested (i.e. nag screens are included, readme's, and etc.)

If this is true, he should contact id Software directly. I'm sure they would gladly help him out since they are the intellectual owners of the software and are the only ones that can actually press charges in the first place.

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Maes said:

An example is the infamous CueCat hacking case...


The CueCat thing is interesting. I've never heard of that. It's sad and funny at the same time; "You have to wonder about a business plan based on the notion that people want to interact with a soda can," ahahahaha.

There's also the Fair use copyright law, at least in the United States. Other places may have something similar. The most common use for this is copying of materials for educational use.

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