A decision last Friday by the US Court of Appeals for the 9th Circuit could imperil sales of pre-owned games, or any other software with a particularly worded EULA (End-User License Agreement.
The court overturned a May 2008 decision by the US District Court for the Western District of Washington in the case of Vernor v. Autodesk. The original decision stated that Washington resident Timothy Vernor was within his rights to sell a sealed copy of Autodesk's AutoCAD design software he purchased at a garage sale on eBay.
Autodesk's EULA, which was not visible externally on the retail box, stated that the software is licensed to purchasers, not actually sold. It also stated that the license cannot be transferred, so the software had to be destroyed if not used.
The Western Washington court's decision upheld the idea that customers own the software they purchase, commonly referred to as the "You bought it, you own it" principle. The appeals court's decision, however, undermines that idea if the software has "license only" language in its EULA.
EULAs used by many video game publishers, including Electronic Arts, incorporate similar language. "This software is licensed to you, not sold," reads EA's EULA. "Access to the software requires software registration with the serial code enclosed with the software. Software registration is limited to one EA Account per serial code and is non-transferable."
Comparable wording can also be found in Take-Two Interactive's recent hit Red Dead Redemption: "This software is licensed, not sold. You agree not to: (a) Commercially exploit the software; (b) Distribute, lease, sell, rent or otherwise transfer the software, or any copies of the software, without the express consent of the licensor."
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