Video game companies have long considered secondhand game retailers a threat to their
bottom lines. Some companies are now experimenting with technological tools to discourage
and even prevent gamers from buying and selling used games. For example, “tethering”
technology suppresses secondhand sales by permanently identifying particular media items
(such as video game discs) with a single user’s device. This technology flies in the face of
copyright law’s “first sale” doctrine, which gives lawful purchasers the right to sell, lease, and
lend DVDs, CDs, and other media.
This Article answers a question posed by many commentators: whether it is legal to
employ technology that restricts first sale rights. The answer hinges on two statutes: the
Digital Millennium Copyright Act (“DMCA”) and the Sherman Antitrust Act. The DMCA
broadly protects technological measures that restrict access to copyrighted material, which
would likely include technologies aimed at suppressing secondhand video game sales. If end
users came up with a method for getting around these devices, they could potentially incur
liability under the DMCA. However, some courts have interpreted the DMCA narrowly so
as to allow circumvention that does not clearly lead to copyright infringement. Since
accessing the content on a video game disc or other similar media does not constitute
infringement, this construction of the statute would most likely permit users to lawfully
circumvent restrictive technology.
Moreover, technology that abridges first sale rights may violate the Sherman Act, which
prohibits monopolists from acquiring, maintaining, or extending their market power through
predatory or anticompetitive means. Antitrust would be a fitting remedy; the first sale
doctrine is intrinsically linked to antitrust jurisprudence. Courts recognize the importance of
secondhand markets, and have held that monopolists may not use technology to suppress
competition. However, the difficulty of demonstrating that any company possesses
monopoly power in the relevant market could be fatal to a Sherman Act challenge.
Given these doctrinal complexities, it may ultimately fall to consumers to vote with their
wallets and choose not to patronize companies that engage in business practices that abridge
first sale rights. Otherwise, it really could be “Game Over” for the first sale doctrine