Microsoft’s Xbox One Used Games Policies Are Clear as Mud

Microsoft's clarified used games policies have pros and cons -- but mostly cons.

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Will Xbox One allow you to trade in and resell disc-based games? Yes…sort of, says Microsoft in its fresh “How Games Licensing Works on Xbox One” explainer, before winding up like some star NFL kicker and punting the ball downfield.

Before we proceed, give this a quick read — the relevant text:

Trade-in and resell your disc-based games: Today, some gamers choose to sell their old disc-based games back for cash and credit. We designed Xbox One so game publishers can enable you to trade in your games at participating retailers. Microsoft does not charge a platform fee to retailers, publishers, or consumers for enabling transfer of these games.

Give your games to friends: Xbox One is designed so game publishers can enable you to give your disc-based games to your friends. There are no fees charged as part of these transfers. There are two requirements: you can only give them to people who have been on your friends list for at least 30 days and each game can only be given once.

In our role as a game publisher, Microsoft Studios will enable you to give your games to friends or trade in your Xbox One games at participating retailers. Third party publishers may opt in or out of supporting game resale and may set up business terms or transfer fees with retailers. Microsoft does not receive any compensation as part of this. In addition, third party publishers can enable you to give games to friends. Loaning or renting games won’t be available at launch, but we are exploring the possibilities with our partners.

First things first: Contrary to some of the alarmist rumors kicked around by the gossip blogs last month, Microsoft’s confirming it won’t charge a fee if you hand a game off to someone else with an Xbox One. It also won’t charge a fee if you choose to trade-in your used disc-based games. In fact, the company’s basically saying it and fees are like celebrity news sites and responsible reporting — just not happening.

(MORE: Microsoft’s Xbox One Access Requirements Create an Odd Double Standard)

But, and get ready because here comes the ball on that punt, notice all this language about “third party publishers.” Third party publishers — some of used gaming’s fiercest critics, mind you — are accorded final say when it comes to whether you’ll be able to resell a disc-based game or not (and whether you’ll have to pay a fee to do so) or hand game over to your friends.

That means precisely what it seems to: Your right to do any of this stuff with disc-based games just took a serious nosedive with the Xbox One. Instead of making the Xbox One the arbiter, Microsoft’s leaving us in the hands of third parties. “We’re just the messenger!” might as well be the Xbox One’s theme song.

Let’s talk about choices. Microsoft had several here as the middleman. It could have chosen to stand for consumer rights and forced game publishers to lay down on, for instance, disc-based trade-ins. Instead, presumably under pressure from these publishers, it’s choosing to externalize those responsibilities. If EA decides it doesn’t want you trading in Madden NFL or wants to impose a transfer fee on the transaction, that’s EA’s business. If Activision wants to prevent you from giving a friend a copy of Call of Duty to anyone, that’s Activision’s affair.

There is a potential upside to this approach: By shifting the responsibility to third parties, consumers can lobby (or, say, boycott) a third party interpreting these policies toward the draconian end of the scale. While we sometimes choose poorly as consumers (hello Mass Effect 3), aiming us directly at third party publishers gives us at least some recourse (as opposed to boycotting the entire console), though given what we’re losing in the bargain, it’s a bit like celebrating the right to paddle around in a pool after being yanked out of the ocean.

What bugs me the most, however, is Microsoft’s new approach to game lending (or should we call it “gifting”?). Physical game lending, like borrowing a physical movie, a physical book, or or any other sort of reusable physical good, is a time-honored practice reaching back millennia. That’s all about to change with Xbox One.

Microsoft grants that third parties can choose to allow you to give games to others, but — assuming third parties don’t outlaw the practice — these recipients have to be on your friends list (in Xbox LIVE) for at least 30 days. In addition to being arbitrary, that’s simply bizarre. How, in any conceivable sense, legal or otherwise, is it any of Microsoft’s business who I want to give a game to, or under what circumstances of “friendship”? And it gets worse: You can only give someone a game once. I’m reading that as once period, not once per friend, and — this isn’t crystal clear — I gather you can’t have the game back. So gifting, in other words, and R.I.P. sharing.

(MORE: Xbox One Raises the Burden of Privacy Safeguards: 5 Questions for Microsoft)

In addition to being a generally terrible idea, this notion of restricting disc-based games is also inconsistent: Xbox One doesn’t prevent giving (or lending) of disc-based movies or TV shows. Like Xbox One’s inconsistent Internet connectivity requirements, Microsoft’s singling out games, doubtless to squeeze more blood from the stone. Why, as disc-based games are in their twilight days, couldn’t the company have just endorsed the status quo?

There’s a sidebar here about digital, non-disc-based games and the resale of digital content — something we can’t currently do. If you believe, as many do (via the First-sale doctrine, and most of history) that you have a right to resell a good you’ve paid for — digital or otherwise — then Microsoft’s entire Xbox One licensing philosophy collapses (as, to be fair, does everyone else’s). I mention it only to make you aware, if you’re not, that the legal debate over our ability to resell digital content (still very much a physical good) is ongoing.

Microsoft marketing department is keen to remind us that the Xbox One’s architecture is “modern.” You’ll note the word is used prominently in two of the company’s three Xbox One explainer pages. “We’re making these choices because it’s the “modern” thing to do” — that’s the implication, anyway. But some of these choices aren’t questions of modern versus legacy thinking. They’re about deploying modern technology to enable (and excuse) what amounts to pure and simple protectionism, and that’s never been a positive development from the vantage of consumer rights.