As much of North America swelters in record-setting temperatures this week, Europe has coolly delivered a legal ruling likely to create additional headaches for the sun-drenched continent.
The European Union's Court of Justice ruled Tuesday that software authors cannot oppose the resale of used licenses for titles that have been acquired from the Internet, and that any end-user agreement stating otherwise can therefore be overruled from a legal standpoint.
Extrapolating from this, with relevance to gaming, it seems policymakers in Europe have no problem with gamers trading digitally downloaded titles.
This ruling has the potential to alter future game development, albeit indirectly. There's little chance that the imagination and creativity found in most game releases will be hindered in any way by the ability to on-sell them to other Xbox LIVE, PlayStation Network or Steam subscribers, or indeed subscribers of any other of the dozens of digital retailers worldwide.
Instead, the very way that games are designed, and the methods employed to retain ongoing patronage could be deeply affected by any increased freedom to offload digital content.
It's somewhat surprising that by delving deeper into the curiously named Case C-128/11 UsedSoft GmbH v Oracle International Corp, it's abundantly clear that the future of game distribution couldn't have been further from the minds of the Luxembourg-based deliberators.
The ruling speaks clearly towards the settlement of licensing arrangements between a large corporate software provider and a smaller company specifically founded around the trading of used business software.
Instead of triumphing the rights of combat-weary gamers to pass a thrashed game key to a fresh set of eyes, the ruling is designed to allow the means to acquire wealth – in this case, software licenses for Oracle products – to pass fluidly from one company to another in order to be recycled back to a consumer base.
Unfortunately, when applied to gaming, the ruling raises more questions than it answers. It contains no requirement for Valve to produce new software to allow key trading on Steam. No requirement for Xbox LIVE to re-engineer itself to include the ability to trade Microsoft points between subscribers in exchange for second-hand games. It merely seeks to clarify that there can be no legal penalties for anyone doing so, and ignores the fact that without the platform holders themselves enabling piecemeal trading, it's impossible to sell or buy anything but access to an entire user account. It ignores this because the ability to electronically trade the specific software referred to in the proceedings was self-evident prior to the case reaching court.
Sans any compulsory requirement, there is absolutely no reason why any of these game-related digital platform holders should enable such trading to take place. Physical second-hand sales have long been the bane of game publishers, most of which have taken steps to create value-added services such as premium downloadable content to counteract either a perceived, or very real loss of trade due to the second-hand market. Content that now, ironically, can be legally traded. At least in Europe.
The last thing any digital distributor will do is open a second front in the war against the used game market by enabling easy electronic trading, particularly those distribution sites that primarily make a profit from third-party titles and are therefore accountable to multiple publishers. The publishers will predict a loss in revenue, and whether or not this turns out to be the case, distributors will be loathe to contradict them, fearing a loss in supply.
It's likely that new legal challenges will be bought to the fray to water down this ruling in some way, but it is tempting to think of a future in which all developers are challenged to provide ongoing reasons for gamers to keep revisiting their creations. Games that can be played with equal interest both at launch, and months later as new content continues to enthral. A future where successful game developers are not measured in their ability to excite for several hours, but rewarded for their talent in inclusive, persistent and ongoing experiences that are held up as an example of creativity of the highest order, rather than an endless stream of explosions and one-liners destined for eBay.
Granted, such an idealistic view ignores the resulting increased costs, longer development times and tighter margins, all of which would certainly be passed to the consumer, neatly negating any benefit likely derived from a comprehensive second-hand digital market in the first place.
All that really results from the ruling is that any legal ramifications that may have stood in the way of trading digital titles in Europe have either been removed, or enough precedent has been set to provide future litigators with a springboard to prevent publishers exerting too much control over the second-hand market.
Without support from those publishers to directly enable trading, the European Court of Justice has merely added another curious footnote to history of an emerging digital marketplace. An unintentional crossing of the boundaries between business and gaming that, whilst promising for consumers, will likely be squashed by publishers unwilling to cede control over their profit margins.