Can the next generation consoles block used games?

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The next generation Microsoft and Sony games consoles – Sony PlayStation 4 and the newly announced Xbox One – are coming pretty soon now.  There’s been much speculation about to what extent they might attempt to block used games sales, or even sharing of games.  For example, have a look at this BBC article.  Can they actually do that legally?

It’s complicated, is the short answer, and is bound up with the wider question of what consumer resale/reuse rights they have in digital content which they have legitimately purcahsed.  This is known as ‘first sale’ in the US or ‘exhaustion of rights’ in the EU.  I’ve written about it more here  and here.

Here’s the short view: there is caselaw developing in the EU which is pro-consumer and looking to develop for consumers the right to resell digital content.  This is problematic, both because of its judicial activism (it’s the judges, not governments, making this law) but also because the caselaw itself is full of ambiguities – so much so that all we can really say is that there are clouds on the horizon for any business looking to restrict resale/reuse of digital content in the EU; it’s not actually illegal as such.

On the other hand, in the US, we have a series of cases going back and forth, which seem to be reaching different decisions regarding the same issue (more here).  Again therefore, all we can say is that the issue is being thought through in the US – it’s entirely possible it will reach a different decision to the EU.

In the meantime, we’re in a legal no-man’s land in which digital businesses, including the console manufacturers, are doing what they think best for their businesses.  We still have to see what consumers and the lawmakers make of that.


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