Consumer Choice and Fair Use

In a recent issue of Game Informer, I read an interesting news piece on the upcoming PS3, but its significance goes far beyond that system and even the world of video games. In fact, it applies to all digital media.

It seems SCE Australia recently lost a court case involving the use of mod chips to play foreign titles. Current video game systems (and indeed the DVD movie industry) use region encoding to keep certain movies and games out of certain areas, but the court ruled region encoding was “an articficial trade barrier that restricted consumers’ choice.” The ruling impacts only those Aussie gamers who wish to play worldwide games and the descision was obviously made in observance of Australia’s copyright laws, but why did it take a court ruling to make it so? It seems like a no-brainer to me.

Of course, mod-ing does still void your warranty, but once that’s up, what skin is it off the video game industry’s teeth if you play a foreign game? They still get paid. It’s not like you’re stealing from anyone. The same should go for movies. Why should I not be able to buy a copy of Delicatessen on DVD simply because I live in the US? I bought a copy on Laser Disk back in the day and the DVD is available in Europe. Granted, I’ve got the damn PAL/NTSC thing to worry about, but really, why do we need region encoding? There’s no such thing for CDs and it works out great for everyone. We can listen to music from anywhere and there is very big money in it for record shops that stock import CDs (at least in the US, most imports run upwards of $30 for a full-length CD). Why shouldn’t the same go for movies and video games?

Alright, so I’ve probably beaten that horse to death now. On to the second interesting little factoid in the article… the one that really scares me: Sony has apparently developed a technology which could be used to stop an individual from playing used games. The technology, developed by PlayStation creator Ken Kutaragi, would encrypt an authentication code on the disk, making it playable only on the first system it is played on. There’s no word on whether this technology will be employed in the PS3, but the sheer fact that something like this has been developed is absurd.

An argument against this technology could probably be made on the grounds of Fair Use here in the US. After all, if you own two of the same video game systems (Perhaps your parents are divorced and you have an XBox at each parent’s house or you’re really lazy and have one upstairs and one downstairs. I don’t know, work with me here…), why should you not be able to play the game you paid $50 for on both? Based on the Australian ruling and its focus on consumer choice, I imagine the Aussies would probably kill it as well, but did anyone stop to think of the repercussions such a technology would have?

Such technology has the power to kill the video game rental industry as well as friendly borrowing, both of which I am sure trigger a good portion of new video game sales to begin with. So not only would it crush the aftermarket (used video game sales which, one assumes, is the target), but it runs the risk of killing the market as well. Then there’s the environmental impact. Think about it: millions of games (and their packaging) rendered useless once they’re done being played. That’s as good an idea as those disposable DVDs Disney came up with. And, of course, not everyone can afford to plunk down $40-50 for a brand new game, so it would likely cut the available market considerably. Do people even think about this shit?

OK, perhaps I’m being just a tad alarmist here. Surely a mod would be available within weeks if not days to disable such “protection,” but I just wish people would think about the consequences of their creations before building them at all.

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