S.T.A.G.E. said:
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In Vernor v. Autodesk, Inc. the 9th Circuit created a three-factor test to decide whether a particular software licensing agreement is successful in creating a licensing relationship with the end user. The factors include: 1) whether copyright owner specifies that a user is granted a license; 2) whether the copyright owner significantly restricts the user’s ability to transfer the software to others; and 3) whether the copyright owner imposes notable use restrictions on the software. In Vernor, Autodesk’s license agreement specified that it retains title to the software and the user is only granted a non-exclusive license. The agreement also had restrictions against modifying, translating, or reverse engineering the software, or removing any proprietary marks from the software packaging or documentation. The agreement also specified that software could not be transferred or leased without Autodesk's written consent, and could not be transferred outside the Western Hemisphere. Based on these facts, the 9th circuit held that the user is only a licensee of Autodesk’s software, not an owner and hence the user could not resell the software on eBay without Autodesk’s permission.
I know that's Wikipedia but still valid. The EULA was upheld. Other game companies only need to take it to the same court to stop used sales.
Those companies are only still in business because MS and Sony haven't DRM'd their games. If they did, regardless of FSD it would be illegal to circumvent that protection under DMCA