Benji, I hate to do this to ya, as I do like most of your posts and normally you seem to know what you're talking about.
But good Laika, that response to Andrew about file sharing had so much wrong and inaccurate I don't even know where to begin picking it apart.
Well, Live doesn't have a license agreement like say Windows. And a license almost never gives you authority to resell the product. That's usually a big violation of said license.
Yes, all games are sold with some form of EULA(end user license agreement)both in the download instruction sheet and one before install. You know that page of legalese that you ignore before hitting the "I agree, continue installing" button, that means you agreed to sign that license. Secondly, most of these do have a provision for the end user to transfer the license to another person. The original owner must erase the copy on their own computer and any backups before they can legally sell or trade it.
Purchasing a used copy is getting the "property" of others without their permission if the game is the property of EA Sports. But there is an implicit argument that once I purchase the game from the store, it is my property, and when I sell it to the store I am granting them it as their property. Then they can sell it to someone else. If EA or any other game company could do so, they would directly challenge this.
Again, the EULA is usually pretty clear. The software(or music, or motion picture)is sellable and tradable as long as it's on the original format(i.e. cd, dvd, floppy disk, tape, whatever). Selling the original disk with the game on it is absolutely legal, copying the game to another disk or even another medium and selling the copy is not.
Based on the absolutely horrible copyright law we have today, the store and customers would be found in violation of the copyright if it found as EA's property.
Only if the game were switched to another hardcopy or medium. Then the store would be liable for accepting and selling stolen property, the final customer could be liable for accepting stolen goods, neither of which would be worth the time and resources of prosecuting unless numerous copies were sold.
That's completely different. That is actual theft, you are stealing the store's property AND removing that property from the market. Causing a loss to the store, the distributor, customer, etc. In downloading you are not taking the property from anyone, but instead acquiring a copy.
In downloading you are in fact creating a copy that did not exist. When downloading a legal copy of software(or music, or motion pictures)from the distributor, each copy is considered separate from the original, such is the same for illegal copying. A copy of the product is not the original product, but a separate product entirely. One that has been created and distributed without license. Also most countries have theft laws that include the theft of non-physically tangible items, just because you can't put it in your pocket doesn't mean it can't be stolen.
Fair use theory allowed you to tape something off TV, make a photocopy of a magazine page for your files, etc.
That's not even an oversimplification of Fair Use laws(yes, law not theory), it's an entirely different issue. These copies are not created for re-distribution, and are only legal if they remain that way. Once they are sold or traded, or the original is sold or traded without the copies being destroyed, then they become illegal.
Fair Use law involves using a copyrighted song or image for news reporting or parody purposes. Even then, it is only guaranteed after being challenged in court.
How is downloading a TV show different from if your friend video taped last nights Seinfeld for you and gave you the tape?
Did your friend give you his only copy?, or did he stand in the middle of a public place loudly proclaiming he'd make a copy for the first thousand people that ask for one?. The former is unprovable, the latter is unabashed advertising of an illegal act. The more copies, the bigger the crime, and also the bigger chance of being caught.
Previously that was understood to be within the use of copyrights. So was making a mixtape for your friend, or giving them photocopies of a how to guide from a book.
Nope, neither were within the use of copyright. They were just too small to prosecute. Change the 1-1 ratio to a 1-1000 then you have enough liability to make it worth taking to trial.
Also, this legal stuff differs from country to country. In some countries there is absolutely no law against downloading something off the internet, as they have wide fair use protections. That doesn't change the moral argument in those countries to make it alright.
At least you weren't one of those asshats that hold up China, Cuba or North Korea as examples of "how to do it right". Nevertheless, that argument is so wide spread that I'll do a pre-emptive strike on it any way. China, Cuba, North Korea, et al, don't have wide fair use protections, they just have no personal property laws. In communism, socialism and fascism, the collective/government/exhalted-leader owns everything, the individual owns nothing. As these countries can't make money from Japanese, American, and European made software, music and movies, what do they care if their people distribute free copies?.
If used games are legal, downloading games cannot be. As the former implies the copyright over the discs' data is not strong enough to deny a user from reselling that copyrighted data.
Again, selling the original disc that contains the data is legal, a copy of the data on any other format is only illegal if sold, traded or otherwise distributed. Downloading is more prosecutable because one copy can be distributed to thousands and potentially millions of people, and therefor easier to catch and costing higher liabilities.
I think I should also note, that downloading is almost borderline not illegal. Uploading however is. This is why these companies have to be able to prove they can receive copyrighted data from you, not that you just have possession of it.
Nope, no borderline about it. Downloading is still recieving illegal goods, the liability for having an illegal copy is just to small to be worth the while to take to court. Uploading has the added problems of distribution and advertising illegal activity, increasing both the liability of the offender and the likelyhood of being caught.
Edited to add:
Aaargh, I sound like some freakin' egghead interlectual. Ok, here's the simplified statement:
When you buy a game, you buy the rights to one copy. You do not own any duplicates made from that copy, as each duplicate is seperate from the original purchase.
You are freely allowed to sell, trade or re-distribute a DVD with a game on it, as you own that. You do not own the game without the DVD, so it is illegal to sell, trade or re-distribute the game in any format other than the DVD that the game was sold on.
