Used Game Sales Follow Up - Are Game Stores Like Private Libraries?

I am posting this in response to a question I got about my post: Do Commercial Used Game Sales Violate Publisher's Rights? An amazing blogger and attorney who I speak with asked what I meant by my saying "[The First Sale Doctrine] does not apply per se to computer programs."

This is the response I emailed him:

Great to hear from you! For the most part, I am trying to understand First Sale Doctrine. But I am also playing a bit w/analysis. Check it out - I was trying to hint at this provision from the statute:

§ 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord
(b)(1)(A) Notwithstanding the provisions of subsection (a), unless authorized by the owners of copyright in the sound recording or the owner of copyright in a computer program (including any tape, disk, or other medium embodying such program), and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord nor any person in possession of a particular copy of a computer program (including any tape, disk, or other medium embodying such program), may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord or computer program (including any tape, disk, or other medium embodying such program) by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending.

I wonder if anyone could make the argument that the practice of game stores who sell new videogames at a premium, with the expectation that they will eventually receive those games back, in used condition, to resell them in a secondary market, could be considered "in the nature of" rental or leasing.

It's a huge stretch and likely falls well outside of the renting or leasing context, but it's not completely off. If we think of the fact that places like Game Stop sell annual memberships cards that allow customers 10% off of used games, we can consider them in an ongoing agreement that creates the expectation of used game purchases with these gamers. Thus any new games these customers buy are like paying a premium rental price, with the option of keeping the game, rather than a purchase. Many of these customers will bring the game back after beating it, and trade it in for store credit, with the likelihood that they will pick up another used or new game with the credit they just earned. So these stores create repositories of used games or game libraries that are rotated among the gamer community who frequent them, and thus fall "in the nature of" rental, lease or lending.

Again, I'm really just playing with the analysis, but I think it's not impossible to think of it that way (even though it's probably impractical). If you think there is any rationality to this at all, please let me know. If so, should I put in in the post?

Thanks for reading!

(Original image from: The Green Anarchist)

The game publishers are upset at the retailers for creating this secondary market that they feel they are entitled to a slice of. Is this capitalism at its best or something else?