Sony Computer Entertainment Japan recently filed for a new patent which has peaked the curiosity of the gaming world. From the published patent application we can gather that Sony’s new technology links each game sold to the console (PlayStation) upon which it is first played. After this initial imprint, the game would be unplayable on any other PlayStation.
Sony’s stated purpose for developing this technology is to eliminate the robust secondhand market for its games:
The development of electronic content including game applications (APs) is costly and therefore in a content business it is vital to redistribute part of proceeds from sales of the electronic content to the developers. On the other hand, the electronic content is being bought and sold in second-hand markets.
In such a scheme where the electronic content is bought and sold in the second-hand markets or the like, the sales proceeds resulting therefrom are not redistributed to the developers. Also, since the users who have purchased the second-hand items are somehow no longer potential buyers of the content, the developers would lose their profits otherwise gained in the first place.
U.S. Patent Application Pub. No.: US 2013/0007892 at (0028) (filed Sept. 12, 2012)
Sony’s patent application raises some interesting implications in the world of copyright law. Typically, a game developer’s intellectual property rights would not restrict the resale of one of its games due to the First Sale Doctrine. The First Sale Doctrine, first recognized in Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908) and codified in 17 U.S.C § 109, limits a copyright holder’s distribution right, its right to benefit from the distribution of its product, to the first sale. After the initial purchase of the protected intellectual property, the rights of the copyright holder are extinguished with respect to the purchased copy, which allows the purchaser to resell, lend, or share (with some limitation) the product to her heart’s content. Sony’s attempt to limit the ability of gamers to resell their games potentially runs counter to the First Sale Doctrine and is an interesting intersection between copyrights and patents which we certainly intend to keep our eye on.