# Is possessing a legal copy of a game before release illegal?



## Sterling (Oct 7, 2013)

Legal as in a physical game, purchased with your own money and played with a legal console.

I mean, I've been seeing a lot of buzz about this area of legality, and I just don't see how this can be illegal. Just to note, I don't mean uploading it to the internet, I mean playing it, and perhaps showing off a little that you have a copy. Is there some toilet material I can read to get brushed up on this subject?


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## The Catboy (Oct 7, 2013)

I believe that is actually a grey area and more likely would result in the distributor getting fined over the actual customer, but with the recent Pokemon X & Y incident, I am not sure what the legal standing is.


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## DinohScene (Oct 7, 2013)

As far as I know it's perfectly legal.
You're not owning illegal copied copyrighted material and you did pay for it.

If you should blame someone for it then you'd better blame the retailer for selling it to early.


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## Sterling (Oct 8, 2013)

Even then, why is it illegal for the seller to distribute it early? Is there some law, or is it an extension of copyright law because they agreed not to sell it until release? If that's the case, then does that also make the copy an illegal copy, and by extension the consumer is also breaking the law? I'm mostly speaking of the US here, but if anyone could shed light on the European side, I'd much appreciate that too.


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## trumpet-205 (Oct 8, 2013)

Is not illegal in the sense that it breaks the law, but distributors usually sign contracts that forbid early release. So this is more of a civil dispute.


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## FAST6191 (Oct 8, 2013)

I am not sure about this actually. Indeed I am trying to figure out what areas of law it would fall under (obviously contract law with the distributor but that matters little to you in this debate), I am going with copyright (naturally this assumes the IP holders have a registered copyright) by way of the author having not "officially" sanctioned its sale though I would not be surprised to possibly see trademarks rear their heads. The trouble is this could be modified by quite a lot and somewhat ironically some types of spoilers/early reviews (assuming they are not bound by another contract) may be exempt by virtue of being reviews/criticism.

I am even having a hard time thinking of examples, the only one in memory for me is probably when similar things happened with Harry Potter books, though here I am also comparing US and UK/EU IP law which is rarely a good start. As you do not really have to defend copyright and a bit of pre release buzz is often considered a good thing, to say nothing of the Streisand effect/barn doors when horses have bolted/general negative receptions, not so many companies try to lock it down either.

If it came to court though I would bet heavily in favour of the IP holders. Of course the usual "try to avoid seeing the inside of a courtroom" concept is in effect.


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## Sterling (Oct 8, 2013)

trumpet-205 said:


> Is not illegal in the sense that it breaks the law, but distributors usually sign contracts that forbid early release. So this is more of a civil dispute.


 
I see. At the same time, I'm seeing quite a few sites classifying it as illegal and a subject of discussion that is forbidden.

EDIT: Thanks FAST, though I was hoping you might have a bit more on this one. Your posts in this area have always piqued my interest.


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## FAST6191 (Oct 8, 2013)

Actually I might have another example though it would not be a direct version of it like the Harry Potter stuff and more of a quirk; the Scientology people tried some interesting things when some of their more highly paid/inner circle stuff got leaked the other year.

As for sites classifying it as illegal there is probably a contract with various games industry people, the desire to comply with them to an extent (you get cut off from pre release reviews and your site is not likely to make it much further), the desire to avoid having to speak to a lawyer (getting one in/actually doing something is not the cheapest after all) and similar such things, most of which are more easily dismissed when you make a blanket statement like "'tis illegal".


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## Sterling (Oct 8, 2013)

FAST6191 said:


> Actually I might have another example though it would not be a direct version of it like the Harry Potter stuff and more of a quirk; the Scientology people tried some interesting things when some of their more highly paid/inner circle stuff got leaked the other year.
> 
> As for sites classifying it as illegal there is probably a contract with various games industry people, the desire to comply with them to an extent (you get cut off from pre release reviews and your site is not likely to make it much further), the desire to avoid having to speak to a lawyer (getting one in/actually doing something is not the cheapest after all) and similar such things, most of which are more easily dismissed when you make a blanket statement like "'tis illegal".


 
Ah, I see. I'd like to hear the Scientology shit. That sounds like a laugh.


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## FAST6191 (Oct 8, 2013)

Sorry should have tapped that into a search engine

http://www.theregister.co.uk/2008/04/08/church_of_scientology_contacts_wikileaks/
Thought there is also things like 
http://www.theregister.co.uk/2008/09/09/scientology_youtube_dmca_takedown_fight/

Some of the Harry Potter stuff got odd as well
http://www.theguardian.com/media/2005/jun/04/pressandpublishing.gunviolence
http://www.boston.com/ae/books/arti...rry_potter_book_leaked_on_internet/?page=full


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## Taleweaver (Oct 10, 2013)

trumpet-205 said:


> Is not illegal in the sense that it breaks the law, but distributors usually sign contracts that forbid early release. So this is more of a civil dispute.


I think this hits the nail on its head.

Think of it this way: say a friend and me break into a gamestore, I get behind the counter and "sell" him one of the games. This is obviously not legal. It's not legal either if I'm the one doing the breaking into and my friend (or anyone else, for that matter) just buys it. That makes them innocent, but it doesn't make the purchase legal.

The thing that does make it legal is the contract. I can only sell that game if I work for that shop, and in order to do that, I have to sign a contract. And employees of such shops can probably back it up (or deny it), but it seems to me that there is at least a vague reference to not being allowed to sell a game before the actual launch date.


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## ShadowSoldier (Oct 10, 2013)

Definitely not illegal, just an agreement between the store and the publisher.

It's like an embargo for a review. Developers/publishers give early copies to a review site, and they sign an agreement stating that they can't release the review until [insert date here]. If they do, than that site risks not getting any more early release games from publisher.


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## Foxi4 (Oct 10, 2013)

If you legally bought the game then you as a consumer have a green light - it's the distributor and the retailer who have to follow the release contract and schedule, not you. As a buyer, you participate in a transaction with the retailer, it's the retailer who deals with the publisher and those two transactions are separate and excusive. The only instance when it would be illegal to posses a copy of a game early is when it was a stolen copy in which case it has to return to its rightful owner.


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## Pong20302000 (Oct 10, 2013)

Foxi4 said:


> If you legally bought the game then you as a consumer have a green light - it's the distributor and the retailer who have to follow the release contract and schedule, not you. As a buyer, you participate in a transaction with the retailer, it's the retailer who deals with the publisher and those two transactions are separate and excusive. The only instance when it would be illegal to posses such an early copy is if it was stolen, in which case it has to retrn to its rightful owner.


 
put isnt there also a issue of what your paying for?
as certain shops have restrictions on Till sales (e.g. GAME & Gamestation)
if you scan pokemon right now on the till it states "NOT FOR SALE UNTIL THE 12TH OCTOBER"

so do you loose your legal standpoint by running it through as something else as your receipt would not state the Item ID for what you bought


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## Pedeadstrian (Oct 10, 2013)

America: where one person can get in trouble for playing a game they legitimately bought and another person can have hundreds of illegal copies of games and never see court or jail time.


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## Foxi4 (Oct 10, 2013)

Pong20302000 said:


> put isnt there also a issue of what your paying for?
> as certain shops have restrictions on Till sales (e.g. GAME & Gamestation)
> if you scan pokemon right now on the till it states "NOT FOR SALE UNTIL THE 12TH OCTOBER"
> 
> so do you loose your legal standpoint by running it through as something else as your receipt would not state the Item ID for what you bought


In such an instance, in the eyes of the law a legal purchase has not occured. A reciept is a fiscal proof of purchase - if the item does not figure on the reciept and hasn't gone through the system then the transaction and as such also the transfer of ownership did not take place and you were, intentionally or not, scammed by the cashier. Esentially the cashier "stole" the game from the store's stock and "sold" the stolen merchandise to you. In other words, your copy is illegal, but you yourself did not violate the law - you're a victim of a scam.


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## Pong20302000 (Oct 10, 2013)

Foxi4 said:


> In such an instance, in the eyes of the law a legal purchase has not occured. A reciept is a fiscal proof of purchase - if the item does not figure on the reciept and hasn't gone through the system then the transaction and as such also the transfer of ownership did not take place and you were, intentionally or not, scammed by the cashier. Esentially the cashier "stole" the game from the store's stock and "sold" the stolen merchandise to you. In other words, your copy is illegal, but you yourself did not violate the law - you're a victim of a scam.


 
indeed
and normally as such the person who got scammed is to return the product to the person/s it was stolen from
while the scammer is punished and normally forced to return your money (tho this doesnt always happen and the person that was scammed is left with nothing)


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## Ritsuki (Oct 10, 2013)

Actually, buying or selling a game before the release date has no legal consequences. When you buy an item and it gets delivered, you got the right to do pretty much whatever you want with it. The only thing that can happen is that the editor won't restock the store after a moment, to "punish" him (Call of Duty case)


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## ShadowSoldier (Oct 10, 2013)

Ritsuki said:


> Actually, buying or selling a game before the release date has no legal consequences. When you buy an item and it gets delivered, you got the right to do pretty much whatever you want with it. The only thing that can happen is that the editor won't restock the store after a moment, to "punish" him (Call of Duty case)


That.. and.. you know, Microsoft will ban your account.


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## Pedeadstrian (Oct 10, 2013)

ShadowSoldier said:


> That.. and.. you know, Microsoft will ban your account.


Having your account banned seems like a perfectly reasonable punishment for buying Call of Duty in my opinion.


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## ShadowSoldier (Oct 10, 2013)

Pedeadstrian said:


> Having your account banned seems like a perfectly reasonable punishment for buying Call of Duty in my opinion.


Some people got GTAV early, legitimately, their accounts/consoles were banned.


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## Ritsuki (Oct 10, 2013)

ShadowSoldier said:


> Some people got GTAV early, legitimately, their accounts/consoles were banned.


That's because MS's user agreements are pretty strict. But still, you won't get to jail for that. And it also depends the country. I know that in Switzerland, they can't break a contract for that reason, unless it was a major condition in this contract.


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## ShadowSoldier (Oct 10, 2013)

Ritsuki said:


> That's because MS's user agreements are pretty strict. But still, you won't get to jail for that.


I never said you would.


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## MelodieOctavia (Oct 10, 2013)

Once you pay for an item in a place of business, and the product is placed into your hands, you have entered a legally binding contract with the retailer entitling you to the goods that you payed for with legal tender. The customer is not burdened with the legality (or lack thereof) of that purchase. At that point you have the right to play it, burn it, resell it, place it in a hollow tree stump, etc... and unless the goods have been stolen, or is evidence in a pending criminal case, no one has a right to take that from you. Period.

As for the legality for the retailer to sell...well, that's a bit of a gray area. On one hand, the retailer would not be breaking any criminal laws by selling the games, but by contract, they are liable for the punishment agreed upon (a freeze on shipments, fines, etc...) and outside the contract, if it can be proven that they caused the game company monetary damages, they can be held accountable civilly as well.

To sum it up, there is nothing criminally illegal about buying or selling a game before the release date, however, the retailer can be held civilly liable.

*(This info is limited to my knowledge of US law. I am not a lawyer. Void where prohibited. Limit 1 per customer. Ask a parent or grownup before going online. )*


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## ShadowSoldier (Oct 10, 2013)

TwinRetro said:


> Once you pay for an item in a place of business, and the product is placed into your hands, you have entered a legally binding contract with the retailer entitling you to the goods that you payed for with legal tender. The customer is not burdened with the legality (or lack thereof) of that purchase. At that point you have the right to play it, burn it, resell it, place it in a hollow tree stump, etc... and unless the goods have been stolen, or is evidence in a pending criminal case, no one has a right to take that from you. Period.
> 
> As for the legality for the retailer to sell...well, that's a bit of a gray area. On one hand, the retailer would not be breaking any criminal laws by selling the games, but by contract, they are liable for the punishment agreed upon (a freeze on shipments, fines, etc...) and outside the contract, if it can be proven that they caused the game company monetary damages, they can be held accountable civilly as well.
> 
> ...


 
Yet that makes me wonder, if Microsoft is banning accounts and/or consoles, why can't the consumer take them to court?


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## MelodieOctavia (Oct 10, 2013)

ShadowSoldier said:


> Yet that makes me wonder, if Microsoft is banning accounts and/or consoles, why can't the consumer take them to court?


 

Most likely that has something to do with the Xbox Live ToU.


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## Psionic Roshambo (Oct 10, 2013)

I think that the contract with the distribution channel does not turn ownership of the product over until the "release date" what this legally means is that even if you bought it with your own money you still do not own it since the place you purchased it from did not legally have the right to sell it and was probably breaking contract law at the very least and might have been breaking other laws depending on the state. 

In a round about way it is very similar to buying a stereo from the back of a van at a price you just know is too cheap... 

I have had a few games before the street dates but lucky for me everyone was cool about it  

I got to play Diablo II a day or two early and was even on Bnet with a few hundred other lucky people


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## Fishaman P (Oct 10, 2013)

If it is illegal (which I'm pretty sure it's not), it would be really retarded.

Otherwise, there would be a shitload of Frenchmen and Italians in trouble.


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## FAST6191 (Oct 10, 2013)

Psionic Roshambo said:


> In a round about way it is very similar to buying a stereo from the back of a van at a price you just know is too cheap...



There are usually two less than great scenarios when it comes to that sort of thing
1) Yeah you are buying hot goods.
2) You are being sold something too good to be true, legit goods but sold in such a way that you might think they are more than they are.

I am not entirely sure how either is related to this.


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## Psionic Roshambo (Oct 10, 2013)

FAST6191 said:


> There are usually two less than great scenarios when it comes to that sort of thing
> 1) Yeah you are buying hot goods.
> 2) You are being sold something too good to be true, legit goods but sold in such a way that you might think they are more than they are.
> 
> I am not entirely sure how either is related to this.


 

Well if I steal a car stereo and sell it to some one else, at least in the US that stereo is still owned by the original owner just because I sold it to a third party does not give that third party ownership. Whats even worse is that here in the US if the police can prove that the third party knew they where buying stolen goods they can be prosecuted for dealing in stolen merchandise. 


How this all relates is that if the shop in question had no legal right of ownership to sell something they could be in quite the jam. This of course all hinges on what type of contract they signed with the company. I am not a lawyer but I suspect this would be pretty close to what is going on in these cases. 

*On a side note, I have head that sometimes those van's are selling legit item's. The scam is that you might be buying a brand name stereo and good speakers but the guts have been replaced with the cheapest garbage one can possibly find. So when you get home to hook up your purchase of the century it ends up sounding like complete crap and some one else now has your money. 

**On another vector if the shop in question signed some sort of NDA the sale of a game before it's street date could also violate that as well.


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## 3bbb7 (Oct 10, 2013)

The Catboy said:


> I believe that is actually a grey area and more likely would result in the distributor getting fined over the actual customer, but with the recent Pokemon X & Y incident, I am not sure what the legal standing is.


 
what was the pokemon x&y incident? i didnt hear about this

also I dont think its illegal but you cant do some things like post video on youtube or stream to twitch until its release date though


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## The Catboy (Oct 10, 2013)

3bbb7 said:


> what was the pokemon x&y incident? i didnt hear about this
> 
> also I dont think its illegal but you cant do some things like post video on youtube or stream to twitch until its release date though


 
Nintendo actually sent someone out to pick up the games that were leaked


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## tbgtbg (Oct 11, 2013)

Sterling said:


> I see. At the same time, I'm seeing quite a few sites classifying it as illegal and a subject of discussion that is forbidden.



Quite a few sites like to talk out of their ass about things they massively misunderstand or have no actual knowledge of.


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## Subtle Demise (Oct 20, 2013)

What's the point of release dates anyway? The games are finished weeks in advance. Just let people buy the damn thing when it's done. The waiting game is just annoying and pointless. I understand there are concerns like ensuring there is enough supply and crap like that, but maybe I'm just not a patient person.


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## Master X (Oct 20, 2013)

A interesting thought, but with the games having a set release date, couldn't the game company make the argument that early/leak copies are stolen as they were not yet officially released?


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## FAST6191 (Oct 20, 2013)

Subtle Demise said:


> What's the point of release dates anyway? The games are finished weeks in advance. Just let people buy the damn thing when it's done. The waiting game is just annoying and pointless. I understand there are concerns like ensuring there is enough supply and crap like that, but maybe I'm just not a patient person.



There are whole schools of marketing theory devoted solely to figuring out the ideal date for releasing something. How much of that is informed by the thinking that games can/do/should earn most of their money in the first ? weeks, something I will call and odd/archaic notion even if that means little, remains to be considered. As said choices can be demonstrated to have a very real effect on the outcome (read profits) we still have release dates.



Master X said:


> A interesting thought, but with the games having a set release date, couldn't the game company make the argument that early/leak copies are stolen as they were not yet officially released?


That seemed to be the question of the OP. However we were trying to figure out what, if any, laws or case law there was for it.


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## Foxi4 (Oct 20, 2013)

Subtle Demise said:


> What's the point of release dates anyway? The games are finished weeks in advance. Just let people buy the damn thing when it's done. The waiting game is just annoying and pointless. I understand there are concerns like ensuring there is enough supply and crap like that, but maybe I'm just not a patient person.


 
Think back to the Sega Saturn release in the U.S. The console had a set release date - September 2nd 1995, humorously dubbed _"Saturnday"_. What did SEGA do all of a sudden? Announced that the system is available _right away_, four months in advance. What happened? Developers weren't ready with their games which caused a scarce supply of video games available in the launch window, retailers weren't ready with stocking up the system, the advertising campaign wasn't in full swing yet and the entire meticulously prepared system of logistics went belly up, just for the sake of releasing the system earlier than the PlayStation. What was the result? Retailers were pissed off that their logistics schemes had to be altered - some downright refused to sell the systems. This caused heavy losses and in the end, the system never reached the level of popularity it deserved, just because the launch was a disaster. Release dates have a _"point"_ - there's no reason to release your product when you can't actually deliver it to the customer yet.

You're going to pull out the _"digital distribution"_ argument now, which fair play does make games available immediately, but consider this - how will the masses of disc users react when they won't be able to buy the game on disc while others will be playing downloadable versions just fine? They will be pretty pissed off and disappointed - that's how. A minor delay in releasing a game causes the community to go ape _(see: Ubisoft's issues from not so long ago)_ - what do you think _months_ of a delay between the digital and the physical release would cause?


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## iluvfupaburgers (Oct 20, 2013)

i dont really know much about this but if a game gets released earlier than its release date, or anything by that matter, it could be seen as the retailer trying to gain a competitive advantage from others by gaining more sales from releasing early. here it would depend on antimonopoly laws the country has and how it would manage these situations


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