Second hand market is here to stay, say legal experts

Even if it were technically possible to restrict console titles to being played on a single machine, any attempt to shut down the second hand software market is likely to run into major legal concerns, a top UK lawyer has told GamesIndustry.biz.

In an article published today on the site, Davenport Lyons partner Brian Miller outlines the legal situation surrounding the pre-owned software market - which recently came under intense scrutiny after it was claimed that Sony plans to prevent the sale of second hand software on PS3, a claim which the firm has since denied.

"Leaving aside the practicalities of creating such a form of licence and the various difficulties that might arise, for example, where the purchaser owned two consoles," Miller said, "it is difficult to determine the legal basis upon which Sony would be able to prevent subsequent resale of the disk."

He believes that European and UK law regarding the enforceability of End User License Agreements - especially where the purchaser of the software in question is a minor - as well as strict laws over what contracts can and cannot be enforced upon consumers, would probably spell the end of any such restrictions.

In terms of controlling the resale of games, publishers and platform holders are equally restricted, Miller claims - with European law on the exhaustion of right and various terms of the Competition Act both in place to prevent manufacturers from restricting the movement of their products around the marketplace.

Click here to read the entirety of Brian Miller's legal view on the situation.