I think I made a mistake in originally guiding this discussion to a debate on the semantics of what ownership means for digital goods, and specifically, what it means for goods that are tied to an account. I maintain that speaking of "ownership" in regards to the limited rights that a consumer has to software which she or he "purchased", even with respect to legal language, is not a misnomer. To back this claim up, I would point to the EFF article that I cited in one of my previous posts which essentially concludes that transactions which appear similar to sales do in fact grant consumers the protection of a sale, which includes the right to resale.
I would also cite the 1997 Novell v. Network Trade Center case which, is summarized nicely at wikipedia
In 1997 in Novell v. Network Trade Center 25 F. Supp. 2d 1218 (C.D. Utah 1997)[2] purchaser is an "owner" by way of sale and is entitled to the use and enjoyment of the software with the same rights as exist in the purchase of any other good. Said software transactions do not merely constitute the sale of a license to use the software. The shrinkwrap license included with the software is therefore invalid as against such a purchaser insofar as it purports to maintain title to the software in the copyright owner. Under the first sale doctrine, NTC was able to redistribute the software to end-users without copyright infringement. Transfer of a copyrighted work that is subject to the first sale doctrine extinguishes all distribution rights of the copyright holder upon transfer of title.
But like I said, I wanted to get away from the semantic debate of what it is to own, so from now on I'll try to speak of "title to" games rather than "ownership of".
Anyways, there have been half a dozen posts since I started putting this response together, but let me try to respond to a few of the big arguments:
This is like it has always been
No, it's not.
I'm not simply referring to the existence or not of EULAs (although I do not believe that they were as widespread "back in the day" as they are now, and sadly, my mother threw many of my old games/boxes out when I moved to college, so it would be difficult to check), but rather to the enforceability of EULAs as compared between games from back in the 80s-90s and games distributed online now.
For instance, as recently as the 1990's, you could go to a store and rent PC game. I did this in my hometown growing up, and just to make sure my town wasn't a fluke, I checked some old newsgroup discussion on Google, and sure enough, many other people were doing this:
http://groups.google.com/group/iinet.general/browse_thread/thread/56d23a1bc0e055a7/fcf82856a8bf8358?hl=en&lnk=st&q=rent+pc+games#fcf82856a8bf8358 http://groups.google.com/group/van.forsale/browse_thread/thread/708a0373a5ae13be/e53b762096e6d156?hl=en&lnk=st&q=rent+pc+games#e53b762096e6d156 http://groups.google.com/group/alt.games/browse_thread/thread/7a89aa393e9b9a2f/bb000874f15773e9?hl=en&lnk=st&q=rent+pc+games#bb000874f15773e9 Personally, I have no intention of renting games out, and with the prices that GOG is selling at, I would be out of business. My point is that the consumer rights were much higher back in the day.
What ended this era of rights was not the move to internet-based modes of distribution, it was the set of laws that made circumvention of DRM technology, illegal, even when such attempts at circumvention were for legal purposes, like trying to get a DVD to work on Linux or trying to set up a new game of Spore for your daughter to play with.
While someday, there may be a landmark case that establishes that I do in fact have title to games distributed via the internet, I have not seen that case yet, so my rights remain uncertain when restricted by the EULA GOG uses.
Additionally, even if many of you are right and I never had the rights I imagined, who cares? As a normative issue, I ought to have the right to let my friends play the games that I buy when I'm not using them. Under the terms of this agreement, that can never occur.
Logistically, it's just impossible to grant you title
In an earlier post, I granted that their are some challenges, but they are by no means insurmountable.
From a technological standpoint, it would not be difficult in the least to add a button to the "my accounts" page which says "I've sold this title to another person, please remove this game from My Account".
From a business practicality standpoint, I believe that such technology would actually be a net plus for several reasons.
First of all, such a feature would not promote piracy. Given that GOG is true to their word insofar as the executables contain no DRM, anyone inclined to pirate the works they download probably already is. Adding a remove-game button simply provides a mechanism for honest users to be honest when they're giving the game to someone else.
Secondly, allowing transfers provides an incredible viral marketing opportunity. After a customer has removed the game, GOG can follow up and ask for the email address of the new title holder. They can then send an email to that person, inviting them to activate their account so that they make take advantage of the online download for the game they recently purchased, and so they can enjoy other games.
I think that the marketing potential outweighs any lost sales. Even if it doesn't, it treats the customer with respect.
A contract negotiating perspective is the hardest - I understand that publishers like Interplay are going to be hard to convince to not only give up DRM, but also to do so without at least a pro-forma nod to the licensing scheme the games industry has become accustomed to. Ultimately though, Interplay really isn't selling that many copies of Fallout (much less Battle Chess Special Edition) so even the limited sales that GOG can offer give them a big bargaining chip.
Why do you care?
Because I love games, especially on a PC, and I believe that for the art of games to grow, you must be able to share.
Again, I don't mean share as in make available for millions of people to download, I mean share as in letting a friend play. I got into games, at first casually, when my friend shared a massive collection of Apple II/e games with me. I truly became a "hardcore" gamer when my friend gave me his copy of Half-Life. I have since dumped literally thousands of dollars into the industry, both on the latest and greatest games, and in finding old classics to play through. What has largely kept those old classics around are not the $99 new copies of Monkey Island that someone kept in a vault, instead, they are the $15 used copies people are kind enough to sell.
While it's great that GOG keeps new copies of many of these games available at low costs, there's a chance that when it comes time to renew the contract with Interplay in a few years, they may need to change their selection, or they might simply stop offering some games because it's not worth it to host a game that just didn't sell well. What is sure to keep good old games (note the lack of capitalization) being played are transfers to new gamers, and it would be unfortunate if Interplay had the power to decide those transfers should be stopped.
I've been writing this for a while now, if there are any points that I missed, let me know.
PS - the forums should really have private messages.