A judgment in the United States Court of Appeals for the Ninth Circuit filed on September 10 could threaten the used game market. The judgment was regarding a case from Autodesk (makers of AutoCAD software). Long story short, some guy (Vernor) bought copies of AutoCAD, then resold them on eBay. A suit was filed trying to establish who has rights to the software and this opinion is the result. The courts ruling that “A software user is a licensee rather than an owner,” has wide-ranging implications.

This ruling regarding AutoCAD software does not implicitly include games. But, since video games are software, it could be used to establish the future resale market. This doesn’t just affect Gamestop and its customers. If you buy or sell used games on eBay or Amazon’s Marketplace you could be seen as breaking the law. Personally, I doubt EA or Activision is going to pursue legal action against everyone who buys a used game. I foresee them using a software solution that prevents use by a secondary owner. But how will that work for rentals, or people borrowing games from friends?

This ruling has my mind churning. I think we all knew some decision about this would come eventually and I had assumed it would go the other way. But there is another possibility at work. Should game makers even bother? Does the used game market benefit the publishers in some way? A publisher only makes money on the initial retail sale of a video game. They also get a piece each time it’s rented. But if I sell my copy of Fallout 3 to Gamestop and they turn a quick profit on it Bethesda makes no money. Or do they?

I missed the original Fallout because I wasn’t a PC gamer until a friend let me borrow Fallout 2. I was floored. Not only did I find and buy that game, I got the original game. I also bought Brotherhood of Steel on PS2 and Fallout 3 (twice) on PS3. I sold my first copy to Gamestop for credit on buying the game of the year edition (this actually saved me a little cash versus buying the DLC separately). I have New Vegas, the collector’s edition, reserved. That makes six new games the series sold me based on a used copy.  Should Bethesda be upset that my used copy won’t make them any money? I don’t think so. They should be thrilled that I may have hooked a new gamer into their fold.

So, publishers, consider this my challenge to you. Don’t run with this ruling. I know there are other factors at stake, particularly piracy. But I think, in the long run, the used game market benefits everyone.

What does everyone else think? Sound off in the comments or on our forum.