By: Luis A. Velez, The IP Trend™ Blog
This is a three-part publication, which raises questions regarding the new digital market and its effects in the video game industry. It analyzes the past and current attempts in redefining the industry and how they could potentially affect the legal doctrines that protect not only copyright holders but also users.
The video game industry is evolving into a technological monster. It is affecting the way we access and purchase video games. Console manufacturers propose a digitally consumer monitored relationship through their online services. In the past, consoles were only purchased to play games. Now, consoles are manufactured as mechanisms with integrated utilities (e.g. watching movies, accessing email accounts or Internet services). The services integrated in consoles didn’t affect the gaming experience until 2013. The E3 press conference held in 2013 is the industry’s latest attempt in redefining the whole gaming experience. Microsoft’s E3 press conference raised some Digital Rights Management (hereinafter “DRM”) concerns by stating: “games would need to be fully installed onto systems before play and that each copy would then be watermarked to its owner. Attempts to then sell on or give away the boxed copy of the game would be controlled by Microsoft”.
The proposal, although innovative, would undermine the secondary market (i.e. trading, reselling or sharing video games). Gamers stood up against the adherence of this newly controlled relationship, making the company rethink its proposal. The company later abolished its DRM reform and apparently we all live happily ever after…for now. As a lawyer and a gamer, I ask the following: are we purchasing the right to own a video game or are we purchasing a mere right to use a video game (license)? Does it make a difference if we own a hard copy or a digital copy? Does the transition of tangible to digital copies destroy the copyright limitations imposed to copyright holders?
Too many questions! Fortunately, there are legal policies that could address the issues above. Even if there is only a clear mere right to use, we need to discuss how policy interacts with this uneven relationship. There is a contract relationship inclined to benefit only one side (i.e. the copyright holder). A policy analysis will support a just determination attending the reasonable concerns raised by those who paid value for its use. I will discuss the policy analysis in the Second and Third Part of this article. To be continued…
 Keith Stuart, Xbox One DRM restrictions dropped after gamer outcry, The Guardian, http://www.theguardian.com/technology/2013/jun/19/xbox-one-drm-second-hand-restrictions-abandoned.
 Mark C. Humphrey, Article: Digital Domino Effect: The Erosion of First Sale Protection for Video Games and the Implications for Ownership of Copies and Phonorecords, 42 Sw. L. Rev. 441, 456 (2013).
 See id. at 459.