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R.I.P. Xbox OneUPDATE: Microsoft has issued a mea culpa and retracted pretty much everything about the Xbox One's DRM policies. Hooray for the power of group outrage!

“The first-sale doctrine creates a basic exception to the copyright holder's distribution right … Without the doctrine, a possessor of a copy of a copyrighted work would have to negotiate with the copyright owner every time he wished to dispose of his copy.”[1] Seem familiar? This is exactly what Microsoft is asking people who buy disc-based games for the Xbox One to do: negotiate with the copyright owner every time you wish to dispose of your copy of the game.

It's true digital distribution is presenting a number of legal issues around copyright and the first-sale doctrine. Copyright holders want to “license” media (including games) to us, without actually considering the logic behind that stance. If we are only buying a “license” to use content and not buying the content, then copyright holders should be offering to re-sell us the same content for only the cost of the media. For example, if your child destroys your game disc, you should be able to get a new disc for only the cost of the disc—after all, you already paid for the “license.”[2] Of course, this is not how physical distribution works.[3]

Media distributors have, for years, been trying to convince us we are only purchasing a license to use their content, not an actual copy of the content with which we can do what we wish (first-sale doctrine). However, if we do not own the copy, if we only have a license, there are issues that crop up:

  • Your license can be revoked. It's not hard to find stories of people who have lost access to hundreds of dollars worth of media because their account was banned. If we are only license holders, not owners, our use of the product is subject to the whim of the copyright owner.

  • Your license can expire. Again, you can easily find stories of people who have bought content from a distributor, and then the distributor shuts down, the content can no longer be authenticated and so they lose their content. And they can't even complain because the company issuing the license doesn't exist.

  • You are tied into ownership of the physical product for life. If you can't sell, trade, or give the physical copy of the media away, you are stuck with it, even if you don't want it. What happens to physical media no one wants any more? There's a landfill of E.T. cartridges in NM that would like to have a word with you.

  • Pursuant to the previous point, ownership of the licenses cannot be transferred to your heirs upon your death. So what happens when you die and your estate is full of can-no-longer-be-played games? There's that landfill again.

  • Renting and borrowing are right out.

Digital distribution solves some of these problems (there's no physical media to be thrown away); but, it is even more heavily dependent on your account maintaining good status and the digital distributor not shutting down. And the distributor doesn't have to shut down for good, any interruption in service removes your ability to play your games.[4] If you're dependent on a digital distributor for access to your media, you really have no control over the media at all, not even over your use of it. Do you really want Microsoft (or Valve or Amazon or etc … ) to determine when you can and cannot play your games, or read your books, or watch your movies?

I'm glad Microsoft has created this controversy. It is finally getting people to pay attention to the concept of ownership. If we keep passively letting copyright owners to strip us of our ownership rights, we only approach a future in which we don't own anything and are dependent on the goodwill of others to keep anything we have. And that's not a future I want to live in.


[2] Some companies, Disney was one, actually put their money into backing this concept. For example, when buying a DVD of a movie, you could send in proof-of-purchase from a VHS copy of the same movie and get a rebate—i.e. you were only paying for the new media, not a new license. Sadly, I don't think anyone does anything like this any more.

[3] Yes, this is an advantage of digital distribution. If your physical copy is destroyed (e.g. hard dive crash), you just re-download the media from your account. Assuming, of course, your account is still active and the provider still in business.

[4] Microsoft's statement about not being able to check in online but still being able to watch DVDs is (I'm sure unintentionally) ironic: You can't play your disc-based games for which you paid, but you can watch your disc-based movies for which you paid. Are they trying to go out of business?