What does it even mean to “own” a video game?

[Shadow1980]

That's an issue of property rights, and therefore it's a question for the law to answer. And I'm going to go over that in depth here, so there won't be a short version. Also, since I'm an American, I will be focusing on U.S. law. The laws will obviously differ in other nations.

Cornell University defines ownership as "the legal right to use, possess, and give away a thing," citing a U.S. District Court case called Collier v. California, where the ruling stated "the three elements of complete ownership of property are the right to possess, enjoy the use of, and to dispose of property." TL;DR: If you own something, it's your property. It's distinct from borrowing, renting, leasing, or otherwise being granted limited and temporary possession of someone else's property.

For example, I own my lawnmower. I can decide for myself who, if anyone, can use it besides me, like if I let my neighbor borrow it because his mower is out of commission. If someone took it from me without my permission, it would be stealing. If I wanted to sell it, give it away, or throw it in the trash, that's my prerogative. I can modify it at my own discretion. But if I rented a piece of equipment from the hardware store, I'm merely paying for permission to use it temporarily. It still belongs to the store, with all the obvious legal implications. I'd be expected to bring it back, intact, because it's theirs, not mine. I can't alter or dispose of it, because it's theirs, not mine. If the store decided I mishandled it, they can bar me from renting from them again. And obviously if I tried to sell it off I'd be in deep shit and would find myself in a courtroom in the not too distant future because, again, it ain't mine.

Of course, that's all something we generally understand. We know how property works for most things. However, with copyrighted material the boundaries get a bit fuzzy because of intellectual property law. In the United States, IP law is actually established in the Constitution. One of the powers of Congress established in Article I is the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Title 17 § 106 of U.S. Code lists a host of legal rights a copyright holder has, stating that they have the exclusive right to create new copies of the work they created (hence the very term "copy right"), to create derivative works based upon that work (so they have sole discretion on how to handle things like fan works based on their IP, up to and including issuing C&D orders or suing people who create those derivative works), to distribute copies of the work to the public "by sale or other transfer of ownership, or by rental, lease, or lending," and to publicly perform or display the work or authorize others to do so.

These rights are not necessarily absolute in all cases. There's the existence of fair use provisions, for example. Then there's that provision regarding distribution of the copyrighted work. The existence of intellectual property ended up resulting in legal challenges over ownership of copies that had been sold to customers. In 1908, in the case Bobbs-Merrill v. Straus, the Supreme Court stated that the question at hand was "Does the sole right to vend (named in 4952) secure to the owner of the copyright the right, after a sale of the book to a purchaser, to restrict future sales of the book at retail, to the right to sell it at a certain price per copy, because of a notice in the book that a sale at a different price will be treated as an infringement, which notice has been brought home to one undertaking to sell for less than the named sum?"

The Court decided that "In our view the copyright statutes, while protecting the owner of the copyright in his right to multiply and sell his production, do not create the right to impose, by notice, such as is disclosed in this case, a limitation at which the book shall be sold at retail by future purchasers, with whom there is no privity of contract." This is what first established the first-sale doctrine, which is what in turn makes the second-hand market and person-to-person lending & trading possible. This legal finding was eventually codified in federal law. Title 17 § 109 of U.S. Code, states:

"Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."

The language of the law calls the buyer "the owner of a particular copy," thus clearly establishing the customer's legal ownership of physical copies. While the owner of the copyright owns the story, characters, etc., once they've sold a copy, said copy is itself no longer their property. The buyer is the owner. If you buy a book or a vinyl record or a Blu-ray, that copy is just as much your property as the shelves you bought to store them in. You can sell, lend, or gift it just like any other durable good. The only thing you are legally prohibited from doing is creating new copies to distribute to others. While Title 17 § 109 did create an exemption to the first-sale doctrine for computer programs (like a physical copy of Windows Office, for example), that exemption does not apply to "a computer program embodied in or used in conjunction with a limited purpose computer that is designed for playing video games and may be designed for other purposes." That's legalese for "a video game console." So, physical console games are, just like print books and physical copies of movies and music, treated as "sold, not licensed." It's your property to do with as you see fit, the sole exception of being able to create new copies to distribute to others.

Of course, these laws were all written in the 20th century, before digital distribution was really a thing. The U.S. Copyright Office, when discussing the ramifications of the DMCA, stated the following in regards to ownership of physical vs. digital copies:

"The common-law roots of the first sale doctrine allowed the owner of a particular copy of a work to dispose of that copy. This judicial doctrine was grounded in the common-law principle that restraints on the alienation of tangible property are to be avoided in the absence of clear congressional intent to abrogate this principle. This doctrine appears in section 109 of the Copyright Act of 1976. Section 109(a) specified that this notwithstanding a copyright owner's exclusive distribution right under section 106 the owner of a particular copy or phonorecord that was lawfully made under title 17 is entitled to sell or further dispose of the possession of that copy or phonorecord. ...

The underlying policy of the first sale doctrine as adopted by the courts was to give effect to the common law rule against restraints on the alienation of tangible property. The tangible nature of a copy is a defining element of the first sale doctrine and critical to its rationale. The digital transmission of a work does not implicate the alienability of a physical artifact. When a work is transmitted, the sender is exercising control over the intangible work through its reproduction rather than common law dominion over an item of tangible personal property. Unlike the physical distribution of digital works on a tangible medium, such as a floppy disk, the transmission of works interferes with the copyright owner's control over the intangible work and the exclusive right of reproduction. The benefits to further expansion simply do not outweigh the likelihood of increased harm."

In other words, according to current U.S. law and jurisprudence, digital copies are treated as "licensed, not sold." You own nothing. And since you own nothing, you control nothing. The publisher and seller are the ones that dictate the terms of use of the purchased title. If they want to take it away, they can... and they have. There have been multiple instance of individual people having digital libraries wiped from e-readers by the manufacturer and Steam accounts being nuked and the person losing all of their games. There have been instances of individual titles being remotely wiped from people's devices for various reasons. Discovery almost forced Sony to remotely wipe all Discovery content from people's PlayStations, which was only avoided because of a new licensing agreement.

It's because of all of this existing precedent regarding how digital has been treated that I remain a staunch supporter of physical media, and have been exceedingly sparing of spending money on digital (maybe $25-30 in the past fifteen years). I was already burned once by digital back in 2010 after Xbox Live support for the OXbox was shut off. Some weeks or months after that, I went to play some Halo 2 multiplayer locally, only to find I somehow lost all my DLC maps, with no way to re-download them. Fortunately, all but the last two DLC maps had already been released on a physical disc (which you can still buy second-hand to this day, and at a reasonable price). That was the incident that solidified my skepticism towards digital downloads. Some might argue that such things are handled differently, but for me, well, "once bitten, twice shy" isn't just a song by Great White (yeah, I'm old). I went way more in-depth about my feelings regarding digital games in many other posts over the years, most recently in this post from a few weeks ago, so I won't reiterate those points here. I will just say that ownership is power. Always keep that in mind. If the convenience of not having to go to the store to buy games or get off the couch to swap discs is more important to you than the legal rights conferred by ownership and you're willing to take the risks that come with essentially leasing all of your games, then that's your prerogative, but you can't say you weren't aware of those risks.

Moving along, there's another problem regarding video games and the matter of ownership. Always-online games for now fall into a legally gray area. If you bought a physical copy of Destiny or The Crew or Anthem, you do legally own that copy. But does that imply a right to continue using that copy for its intended purpose? If the game's servers are shut down, you no longer have a functioning copy of the game. You can put it in the system, but the most you can do is bring up the main menu. You can't actually play it. This is what has led to legal challenges such as those put forward by the Stop Killing Games movement. This is obviously far from a settled matter in the courts. It is a legal battle that exists adjacent to similar matters such as the "right to repair" as well as the aforementioned legal fights that resulted in the creation of the First-sale Doctrine. Once again, there is a conflict between two different property owners: the owners of a purchased good and the owners of intellectual property.

Personally, I think there is a good legal argument that a game's publishers ought to have an obligation to ensure that their customers can continue to play a game that they've purchased, regardless of whether said copy is physical or digital, but especially if you bought it physically. And especially if it's a game that is designed in a way that can be played entirely single-player. And until that matter is settled by the courts, just as I refuse to spend money on the digital version of a retail-release game, I refuse to spend money on a game that needs a persistent internet connection to function. If it doesn't have a single-player mode playable offline, then I ain't buying it.