(Gamespot) – Pre-owned game sales account for a major chunk of GameStop’s profits, and have other retailers wanting a piece of the pie. However, a decision on Friday by the US Ninth Circuit Court of Appeals could imperil sales of pre-owned games, or any other software with a particularly worded end-user license agreement (EULA).

The Court overturned a May 2008 decision by the US District Court for the Western District of Washington in the case of Vernor v. Autodesk. The original decision stated that Washington resident Timothy Vernor was within his rights to sell a sealed copy of Autodesk’s AutoCAD design software he got at a garage sale on eBay.

Though the copy of the software was sealed, Autodesk’s EULA, which not visible externally on the retail box, said that the software is only licensed to purchasers, not actually sold. It also said that the license cannot be transferred, so after purchase, the software had to be destroyed if not used.

The Western Washington court’s decision upheld the idea that customers own the software they purchase, commonly referred to as the “You bought it, you own it” principle. The Appeal Court’s decision, however, undermines that idea if the software has “license only” language in its EULA.

Tech blog Ars Technica pointed out that the EULAs used by Electronic Arts and many other publishers have similar language in their games. “This software is licensed to you, not sold,” reads EA’s EULA. “Access to the software requires software registration with the serial code enclosed with the software. Software registration is limited to one EA Account per serial code and is non-transferable.”

The EA EULA is for a PC game, which typically require acceptance of such terms to play. However, comparable wording can also be found in console game manuals, such as that of Take-Two Interactive’s recent hit Red Dead Redemption.

“THIS SOFTWARE IS LICENSED, NOT SOLD,” reads the license agreement on Red Dead Redemption. (Capital letters in original.) “You agree not to: (a) Commercially exploit the software; (b) Distribute, lease, sell, rent or otherwise transfer the software, or any copies of the software, without the express consent of the licensor.” (Emphasis added.)

Inquiries sent to EA and Take-Two about the Appeal Court’s decision were not answered as of press time. However, EA and other publishers have recently taken measures to deter pre-owned game sales, from which they earn no money.

[Full article here at Gamespot.com]

Bioshock 2 available 02.09.10

The long awaited Bioshock 2 will be out Febuary 9th, and there are plenty of gamers already planning to snatch it up at the first opportunity. But don’t just run into the first game retailer you see and buy it! I’ve sorted through the pre-order deals so you can get your game at the earliest possible moment AND get something extra too.

Here are the retailers who are clamoring for your Bioshock business:

Steam: The pre-order price is 44.99, plus they’re throwing in the original Bioshock for free. And as always, if you buy from Steam, you can get your game right at release without having to wait in line with all those other losers. Or, if you like other losers, and have three friends who also want Bioshock 2, you can get the four pack- four copies of Bioshock 2, plus four copies of Bioshock. If you consider the Bioshocks to be freebies, that’s 33.74 per Bioshock 2. Of course, the problem I see with this bonus is that most people who want to pre-order Bioshock 2 probably already have Bioshock- especially after Steam put it on the holiday sale for $4.99.

Gamestop and EB Games: Both retailers are offering two bonus multiplayer characters with pre order- Blanche the actress and Zigo the fisherman. If you buy in store, you will get a card with the code to unlock the duo, much as you would expect. The price is also about what you’d expect: $59.99. If you’re really hardcore, you also get this bonus with pre-order of the $99 Limited Edition.

Amazon.com: Amazon is offering a pre-order price of $54.99 or $55.99 for X360 or Playstation, plus you’ll also get a $10 credit towards future game purchases. That brings the price down to around $45 in a way, but they are twisting your arm to buy more games later. (Which of course you totally weren’t already going to do.) That’s not so inhumane, but they also reserve the right to charge you an indefinite amount for release date delivery- you’ll find out the amount at checkout.

GameStop moving towards Digital Distribution

NEW YORK (Reuters) – Customers who visit GameStop Corp stores will soon be able to purchase digital upgrades to their favorite video games, as the retailer eyes a shift toward digital distribution of games.

The new program, which GameStop will start testing early next year, will work in conjunction with online services offered by leading console makers, such as Microsoft Corp’s Xbox Live and Sony Corp’s PlayStation Network.

Under the program, a GameStop shopper who learns about a new level available for, say, a war or sports game could immediately purchase that upgrade. When the shopper arrives home, the add-on will be available to download and play.

“A large market for full game downloads is not imminent, (but) the add-on downloadable market will grow,” GameStop Chief Operating Officer Paul Raines said at the BMO Capital Management Digital Entertainment conference.

These additional payments may be a key driver of revenue for publishers and retailers in the video-game industry, which has seen slow overall growth amid the tough economy. The idea is that consumers are more likely to pay to enhance beloved games than they are to experiment with unknown new games.

[Read full article at Reuters.com]

Bring em, sling em, and go home with a few extra creds.

(Yahoo News) – The verdict’s still out on Amazon’s mail-in games-for-credit scheme, but Wal-Mart’s not waiting for lightning to strike. The U.S. retail behemoth’s planning a swipe of its own at the billion-dollar used games biz by teaming with portable movie vendor e-Play to deliver store-based kiosks that — you guessed it — let you automatically trade your used copies of games like Ninjabread Man (very wise), Far Cry 2 (death to re-spawns!) and BioShock (are you insane?) for cash, piped to your preferred piece of plastic after a day or three.

Wherecan you do that? Some 80 Wal-Mart locales across the Northeastern US, reportedly, with more to follow if the program takes off. An enterprising would-be customer posting to Neocrisis actually found one and even paused to snap a few photos of the “Video Game Buy Back” mechanism.

How’s it work? Like you’d expect. You walk up to the pastel-blue kiosk, slip the UPC code on your game box under an omnidirectional scanner, and the machine pops up a trade-in quote if it’s in the “currently accepting” database (sorry Fallout 3 and Oblivion haggle/persuasion mavens, there’s no such option here). Assuming you’re cool with the price, you then slip the disc into a slot, the machine presumably ensures the disc isn’t crisscrossed with slash marks or slathered in too much Brasso, and presto, you’re a couple bucks richer-o.

[Read the full article at Yahoo Tech]

According to the website Kotaku, the national gaming chain store ‘Gamestop’ may be lending new copies of their in store stock of games to employees, and later selling them to customers as ‘new’.

Kotaku contacted the Federal Trade Commisson earlier to determine if the practice, which sells games already played by employees at the new price, not the used price would be considered deceptive advertising or marketing. The FTC’s Bureau of Consumer Protection is mandated to protect consumers against unfair or deceptive acts or practices in commerce. Violations of FTC restrictions are a violation of federal law, according to the commission.

“The Federal Trade Commission protects consumers from unfair or deceptive advertising and marketing practices, and we encourage any consumer with a complaint about a company’s business practices to contact us,” said FTC public affairs specialist Betsy Lordan.

Lordan said she was unable to confirm or deny the existence of any investigation that the commission is conducting. As a rule the FTC does not comment on the conduct of a particular business.

Gamestop’s employee check-out policy is:

Associates are allowed to check out one item of store merchandise for personal use for up to four days. Merchandise checkout is a privilege, not a right, and may be revoked at any time.

Hardware, accessories, sealed CDs or software programs that must be altered to install may not be checked out. If the on-hand quantity of a product equals one, the item cannot be checked out. Hot titles may also be prohibited from being checked out, regardless of the on-hand quantity in the store.

Associates may only check out items from the store in which they work. Associates are personally responsible for any merchandise they are allowed to check out.

Merchandise must be properly checked out in the Employee Merchandise Check Out Log in the Game Planner.

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.

Copying of the software and/or manuals/instructions is illegal and is strictly prohibited. Merchandise that leaves the store without being properly checked out or purchase is considered to be unauthorized removal of Company property and may result in performance coaching up to and including termination of your employment.

According to some anonymous GameStop employees and managers, new copies of games rented out to employees are often mixed in with the unplayed display copies – while both are being sold at “new” prices.

Managers are told to “gut” several copies of newly arrived games, removing the disc from the packaging so it can be displayed on the shelf without concern of theft, according to our sources.

While later these ‘gutted games’ are sold to consumers as ‘new’ prices.

After games that employess ‘check-out’ are returned they are placed with the gutted copies. When customers ask about these, they are told they are display copies and have never been played.

While some GameStop managers will on occasion offer a “Shop Worn Discount” for a gutted or checked out title, Kotaku was told that this is actually against GameStop policy which states:

“Do not apply Shop Worn Discounts to any new, used or checked out games, it may only be applied for damaged packaging and new accessories which have been opened.”

Well, either way. Gamestop remains to be the highest grossing sale and re-sale shop for video games, systems and accessories operating over 6,000 stores and grossing over 8 billion dollars in 2008.

[Source]