Reminder: Speaking at Play-Machinima-Law Conference at Stanford

As a reminder, I've been invited to speak on a panel at the Play-Machinima-Law Conference at Stanford on April 24-25, 2009. I will be on the The Rules of Play: The Role of the EULA and other issues in Machinima Creation and Distribution panel, which is at 1:15 pm on Friday, April 24th. If you're in attendance, please come by and say hello.

GameStop Follow-Up Post

I wanted to post a short follow-up to my GameStop Employee Checkout piece, based on some comments I've received. I did first want to point out that GameStop is evidently reviewing its policies in this regard, so I doubt we've heard the last about this.

First, my suggestion to reprint box art has been brought up a number of times, and I wanted to point out that I expressly said 'with permission.' I can't imagine publishers having issue with the proposed practice, as it would be to sell their products. Additionally, I only mentioned making dummy boxes as one potential solution, albeit one with a high upfront cost to outfit each store with a set of blank boxes and the ongoing cost of reprinting paper inserts as new games are released. Another, possibly more cost effective solution would be to create cardboard cards with the front and back of the box replicated on the cardboard. I have no idea which would cost more, or what other solutions might work, but the point was to suggest a solution by which no new games would need to be opened and gutted or placed outside the safety of the behind the counter locking cabinet.

Second, I can certainly understand why people would be upset to receive an open game, or even be unable to accept one in certain circumstances (i.e. gift giving). However, I still think that if the plastic seal is not a major issue, there is no difference in the game experience between a perfect condition new disk and a perfect condition disk played once by an employee, besides the potential public relations issues. Of course, when I say perfect condition, I mean everything: kept in a smoke free environment, free of dirt, not kept in direct sunlight or damaging temperatures, etc. I believe that's a major factor as to why the GameStop employees I've known are far more likely to check out a used title than a new one.

Finally, for the record, I do shop at GameStop frequently, largely because it's the only retailer where I have been able to consistently pre-order and pick up on release date high demand titles, limited edition titles, obscure titles that don't tend to show up much if at all in big box stores (i.e. new releases by NIS), and new hardware. I haven't personally had any problems with the stores I've frequented over the years, including the GameStop store near my home I currently use. Perhaps this, like other situations, varies a lot based on individual store management, but it's difficult to say.

Speaking at Play-Machinima-Law Conference at Stanford

I've been invited to speak on a panel at the Play-Machinima-Law Conference at Stanford on April 24-25, 2009. I will be on the The Rules of Play: The Role of the EULA and other issues in Machinima Creation and Distribution panel, which is at 1:15 pm on Friday, April 24th. If you're in attendance, please come by and say hello.

LGJ: Is game censorship the new trade barrier?

This week's LGJ examines using 'censorship' as a ruse for protectionism. It's a fun trip down international trade lane with a stop at freedom of speech road.

Read on!

GameStop's Employee Checkout and Deceptive Trade Practices

Kotaku recently ran a piece noting that the FTC may be interested in the 'employee check out' policy in terms of a deceptive trade practice. The article goes into some detail about the ability of GameStop employees to check out titles from the store on a temporary basis, and in the event these titles are 'new,' then they are brought back in and resold as new. It certainly poses an interesting question: is that a deception to the consumer?

Before talking about substantive law and my take on the issue, I did want to point out one particular clause in the policy, as posted by Kotaku: "If the product is returned in unsellable condition, or if anything is missing from the package, or if the product is not returned, the Associate must purchase the product at the current price less Associate discount." As I have known quite a few GameStop employees over the years, I know that this part of the policy greatly deters the checking out of new games in favor of used ones. After all, even the slightest inclination that a new game isn't 'new' will more than likely force the employee to buy the game, which many of these employees can't afford. A used game has an expected level of wear and tear, so the bar is much lower for the return to store condition.

So, back to the point at hand: is this a deceptive trade practice? There's both a legal and a pragmatic approach to the answer of this question. From a legal standpoint, ignoring any pragmatic analysis, it certainly seems that way from the letter of the law. Certainly, it's something the FTC could investigate, but more practically, it may be a matter for state deceptive trade practices law. In Texas, for example, it is a deceptive trade practice if you are "representing that goods are original or new if they are deteriorated, reconditioned, reclaimed, used, or secondhand."

Of course, the law does not exist in a vacuum, and from a practical standpoint, I'm not sure what GameStop is doing is as nefarious as some people seem to think. The resale of used goods as new rules had a simple policy argument: when they were implemented, practically all goods had a limited useful life, and any use of them would lessen that useful life. If I re-sold a used console, the console's useful life has diminished. If I re-sold a used TV, that TV's life has diminished. That's not exactly the case with a DVD based media. DVDs do in fact deteriorate, but that's something with a clock that begins from production based on normal biodegrading. If a disk has been properly used in a machine and properly handled, has its life been diminished? I haven't seen any data to suggest that it's anything at all, much less anything significant.

Obviously, if the disk, packaging, or other materials are damaged in any way, or if one-time use download codes are used during the check-out, there is no question that reselling that as new would likely be a deceptive act. Of course, the damages would be relatively minute ($5 or so based on the average new release's used price), which could provide difficulty in generating an actual lawsuit over the issue. However, when the disk is cared for and no damage comes to any aspect of the product, has its value actually been reduced? No, and the content of the product is still 100% present. It's a little more nebulous with respect to DS games, as the last of the cartridge systems. I don't know if they have a useful life as determined by play time or not.

From a practical standpoint, I still don't see why GameStop hasn't moved to reproducing cover art with publisher permission and just re-using empty cases so that no titles have to be opened. Granted, that would basically limit employee check out to used titles, but I'm not sure that's a huge loss to the average employee as many new releases are in short enough supply to prevent check out by the policy as reported by Kotaku anyway. It will certainly be interesting to see if the FTC takes any action on this matter, but from a pragmatic standpoint, I'm not sure they will based on the facts.

[EDIT: I've posted some follow-up commentary here.]

The Thompson - Methenitis Debate

It's official. I will be debating Jack Thompson in Dallas, TX on July 4, 2009. The ScrewAttack Gaming Convention (July 3-5) has politely agreed to play host to the event, which was announced this morning. So, start making your plans to join us in Dallas for what is already being billed as "The Debate of the Century," not to mention participate in the rest of SGC, which has some other great guests lined up. The video announcement can be seen below.