Digging Into Xbox One's Used Games Policy

Should people be upset about the proposed changes to game ownership?

It’s been almost a month since the Xbox One reveal, and we’re still not 100% clear on how the Xbox One’s connection requirements and licensing policies will affect how we play and share games. What we do know for certain, however, has proved unpopular. Restrictions on used games and lending – as outlined in a Microsoft update a few days before E3 began - mean big changes for console gamers. Xbox players will no longer be able to lend disc-based games to a friend; you can give them away, but only once, and only if you’ve been Xbox Live friends for more than 30 days, and you can never get it back.

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What exactly is it about these policies that’s so upsetting?

As for trade-ins, as things currently stand it looks like Xbox One owners will only be able to trade games at “participating retailers”, presumably taking customer-to-customer eBay sales and non-Microsoft-approved trade-in stores out of the equation. Disc rental services will not be supported at launch at all. Microsoft is taking tighter control of what customers do with purchased games.
The outcry against these restrictions has reverberated across the Internet. But what exactly is it about these policies that’s so upsetting? What do they really mean for game ownership – and, as many defenders of the Xbox One have pointed out, is it really that different from Steam?

“No, it's not that different,” reckons John Walker, founding editor of leading PC games site Rock, Paper, Shotgun. “But it should probably be mentioned that I think what Steam is doing is a devastating destruction of a consumer's rights. The mistake in the discussion is the notion of a comparison as a defence. That Steam is doing it too means there's more badness happening, rather than a justification.”

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Xbox One gamers will be purchasing the right to use that game under the terms of their subscription.

From a legal standpoint, though, there are significant differences between purchasing a game through Steam and buying one on a disc, as explained by US attorney Thomas Leaf. “Steam is very different in that you initially agree to a subscriber agreement,” he says. “The subscriber agreement states that you agree to certain terms and limitations. So when you purchase a game on Steam you are really purchasing a service for your subscription. Steam refers to its service as access to a terminable non-exclusive license, which means you have been warned that your license to play the game can terminate at any time and the license is not exclusive to you.”
A similar agreement is likely to be integrated into the new Xbox Live terms of service, now that an Xbox Live account will be mandatory for Xbox One users. Like Steam users, Xbox One gamers won’t be purchasing actual games anymore, either on a disc or digitally: they will be purchasing the right to use that game under the terms of their subscription.
PC gamers have been getting used to a digital-only, digital-rights-managed gaming world for a decade. The price for giving up ownership rights in exchange has ultimately been convenience, as Walker points out. “PC gamers, me included, have allowed themselves to accept these losses of freedom in exchange for convenience. So from one perspective, buying a game on Steam is a couple of easy clicks and a pause to download, rather than driving into town, parking, finding a store, buying, getting home, installing, etc.
“But to get this, we rather nonchalantly dismissed the loss of not being able to lend that game to a friend when we're done with it, or exchange it for something else.”

On the PC, digital rights management sprung from the huge levels of piracy that have existed ever since computer games came on cassettes. Activation codes, limited installs and online authentication have long been part and parcel of PC gaming, but the much lower rates of piracy on consoles have traditionally meant that DRM has been less draconian – never much worse than online passes. Trading in games at shops, as a result, has never been prevalent amongst PC gamers, and most store chains stopped accepting PC trade-ins more than a decade ago. Console gaming, however, is a different culture.

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It’s unlikely that digital games on Xbox One or PlayStation 4 will be any cheaper than full retail price.

Steam differs greatly from what Microsoft is proposing in other ways, too. Most obviously, there’s the pricing. Steam offers cheap games, and plenty of them. It has cut-price sales, and both new games and old are attractively priced. Anybody who’s ever taken a cursory glance at Xbox 360’s games on demand service will know that this does not apply to console digital downloads. And as long as Microsoft still has a crucial relationship with retailers, that’s not going to change.
The reason that full games on both PSN and Xbox Live are so pricy – full RRP, usually – is that neither Microsoft nor Sony can afford to undercut places like GameStop and GAME, shops that they rely upon to stock and sell Xbox and PlayStation games. Given that bricks-and-mortar retailers aren’t going anywhere, at least not yet, it’s unlikely that digital versions of games on Xbox One or PlayStation 4 will be any cheaper than full retail price. Steam, meanwhile, has no such relationship with retailers to maintain, as the sale of physical PC games on a disc is practically dead.

The physical disc is an important factor in this equation. When you buy something digitally there is an understanding that you won’t be able to share it – PC and console gamers alike are used to that. But when you buy a disc? Then, part of what you are buying is surely the ability to share or give away or resell that physical object. This is how consoles have always worked. When you buy a CD or a vinyl record, that music doesn’t get magically tied to your iTunes account.

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When you buy a CD or a vinyl record, that music doesn’t get magically tied to your iTunes account.

“With Steam, you at least never had the disc to start with. With the Xbox One, you have this object, but your rights over it are starkly taken from you,” offers Walker. “It's the physical copies that are making people so angry, and I think a huge part of that is because this isn't an exchange for convenience, but rather, boldly obvious previous rights being taken away.”
It comes down to the change to a subscription/service model rather than the purchase model. But don’t we need new laws to govern these changes? Where’s the precedent in other entertainment industries? “The thing is that DRM, media rights and how they intermingle with the law is a mess,” says Tomas Leaf. “IP law, Copyright law and Contract law all apply to this issue and the manner in which this all moves is very fluid. Law changes only by an appellate court changing the common law or by legislature passing new laws, which is inherently cumbersome and slow.
“The facts of a 1996 case regarding EULA’s are so out of date we might as well be debating whether or not tyrannosaurs have a right to eat leftovers of a stegosaurus left by a pack of velociraptors.”

Another important point is that if you want to play games on a PC, there are many alternatives you can choose from (GOG, Amazon and EA’s Origin among them). Plenty of PC developers also release their games outwith the Steam system, letting you purchase them direct or making them available as a simple .exe file. On the Xbox One there will be no such choice. If you want to play games on that console, you have to play by Microsoft’s rules, in Microsoft’s walled garden. This takes away that vital element of choice, and it’s a big reason why so many people feel uncomfortable.

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If you want to play games on that console, you have to play by Microsoft’s rules.

The question becomes, do you trust Microsoft as the curator of your gaming life? Do you trust that particular corporation with control over your games, and when and how you play them? It’s easier for many people to trust a company like Valve, which has a very different relationship with its customers, than one like Microsoft (or indeed Sony, which hardly has a spotless record in protecting its customers’ data).
The fact is that lending, sharing and playing with friends and family is not just a vital part of console gaming culture, but of culture as a whole. The ability to share your Xbox One games library with ten other people is an important concession to this fact, but is it good enough to make up for all the other restrictions? For many, it’s not.
“I think sharing is intrinsically important to humans,” Walker asserts. “It's too easy to dismiss culture as greedy/everyone for themselves, etc, because on a micro level it simply isn't true. In fact, it's really only true on a corporate level. What we're seeing [here] is, just as we have with music and film, corporations trying to apply their sociopathic corporate mindset to consumers as a mass. And consumers aren't a mass, they're people, and they defiantly share.”

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Sharing and consumer rights need not die with physical media.

When I started playing games in the ’90s, PC DRM used to be the price that we voluntarily paid for being at the cutting edge of gaming. We used to be able to choose to exempt ourselves from it, and choosing to be a console gamer has traditionally been a part of that. We’ve bought consoles because we want the simpler option, the option that lets us share both within the living-room and by lending. What Microsoft is proposing is an affront to traditional console gaming culture, and this goes a long way towards explaining the backlash against it. It is not just a fundamental change to the consumer rights of ownership that goes further than other digital distribution platforms like Steam and iTunes, it’s a fundamental change to that culture. Sharing and consumer rights need not die with physical media.
Things are undoubtedly changing, and eventually it’s likely that we will all move towards a digital-only world, governed by service and subscription models that give whatever company we choose more control over our entertainment. Discs will become a thing of the past, and we will have to adapt. But we will do so on our own terms, within a system that we feel comfortable with – like PC gamers have with Steam. If this uproar has proved anything, it’s that people won’t be forced.