Software [Non-]Ownership: EULAs and Thinking About Property

We don’t really own most of the software we buy. As one writer put it a few years ago, “the software on my computer may as well be tied to a long piece of elastic, just waiting for the publishers to give it a tug.” That “piece of elastic” is a license, as in “End User LICENSE Agreement.” Almost all of the software we buy- especially what we download rather than physically purchase- is licensed to users by publishers and developers. These licenses vary from one piece of software to another*, but for a lot of games, the licensor (publisher or developer) has the legal right to take the game away from the licensee. Usually, the licensor will include specific reasons why they might do this, but will often round out the list with something like “or for any other reason.” There are not many limits on what this license cannot contain, must include, or how it has to be structured.

This model has been around for a long time, but I think it is fast becoming a serious problem. The core of the problem is that almost all users think, feel, and act as though they do own the software they have purchased. The American concept of property is still fundamentally rooted in John Locke’s Second Treatise of Government (a text that was a tremendous influence on the Founding Fathers and early US statesmen, politicians, and writers): if you work on something (or pay for it, or both), you have a claim of ownership on that thing. It is how we understand all of the other ownership paradigms in our society, and makes it easy to determine where ownership begins and ends. I cannot think of a single instance where one might purchase a physical object and not have full ownership rights over that object. Any arrangement where something is transferred with some kind of “elastic string” still attached is not called a “sale.” It is called “renting,” “leasing,” “borrowing,” or possibly “putting under mortgage.”

For most American minds, the concept of a “sale” includes the concept of a complete ownership transfer. I think it is easy to consider this one of the central reasons why there is so much resistance to copyright law, digital piracy laws, and other abstract controls on ownership of non-physical property. The laws that guide physical property do not apply to digital property, even though the only model we have for thinking about digital property is our history of thinking about physical property (Locke). A key point of contention is whether the legal concepts underpinning physical property must be different from the legal approach to digital property. The fact that US law does take these two different approaches does not mean that US law must take these two different approaches.

It may turn out that changes in net neutrality will affect how publishers and developers rethink this business model. As internet use becomes a worse experience, especially for data-intensive games, it is more important that companies ACTUALLY sell the product, not just license it. A data-choked internet will increase the need for offline gaming. It will create a whole new level of challenges for always-online DRM and increase the potential for server-crashing launch fiascos (e.g., Diablo3 and SimCity). A big reason that companies went to online-DRM models was to combat piracy. If net neutrality slips away, the ISPs might make piracy difficult enough (intentionally or unintentionally) to make developers feel more comfortable with moving to a sale-not-license model.

The only games currently practicing this kind of model are “abandonware” games: games whose developing companies have closed up, or have simply allowed their works to pass into the public without fuss. It is not clear that all presumed “abandonware” games are actually “orphan works” according to actual US copyright law. Indeed, a lot of games I’ve seen peddled under this banner are decidedly NOT orphan works and are not subject to the same freedom of transfer that the seller implies. But the videogame world operates on the legal principle of developers declining to enforce their civil rights against consumers as heavily as its programmers rely on the principle of “last in, first out.”

*I think the analysis is different for different software. Stricter license make sense for, say, reduced-cost versions of editing, publishing, or creative suite software for “Academic Use Only.” My position in this post is certainly not that “all licenses are bad,” or anything remotely close to that sentiment.


EDIT/ UPDATE:  Another recent blog post on this subject, from a slightly different angle.