Incentivized Destruction: Can Marvel's "Comics for Comics" Idea Jump to Video Games?
Interesting story today on Wired.com and ComicsBeat.com about Marvel's "comics for comics" promotion, which incentivizes comic book stores to destroy copies of DC Comics' Flashpoint series. If comic book stores rip covers off the Flashpoint books (thus rendering them basically unsellable), and send them to Marvel, Marvel will send the stores a variant edition of Fear Itself #6. So basically, it's "destroy our competitor's product and we'll send you special editions of our products." No love lost between Marvel and DC, I guess.
This leads to the obvious (for this blog) question: is Marvel's promotion legal? Short answer, yes in the case of comic books. Maybe not in the case of other media. Reason: different ownership structures.
In the case of comic books (as with other printed works), retailers typically purchase the copies that sit on their shelves. This means that the books can be kept, sold, or destroyed; it's all up to the store what they want to do with those individual copies. If a store wants to rip up the copies of books it owns, it can do so. Therefore, someone who incentivizes the comic book store to destroy its own property is not liable for that destruction.
This ownership issue is not as clear cut in other media, particularly software. Software tends to be licensed to retailers rather than sold, meaning that the copies of that software that sit on store shelves are not the property of the retailer. Instead, they are the property of the publisher/distributor, who in effect "rents" shelf space on which to hawk its wares. If the retailer destroys the software, it is destroying the property of another.
This is why, in my opinion, you're not likely to see the "comics for comics" idea become "games for games." Games, as pieces of software, are not typically "sold" to retailers. In fact, they may not even be sold to consumers (think back to the EULA cases we've covered before, which discuss the difference between sales and licenses). Best Buy does not necessarily "own" the games it "sells" to consumers.
So what happens if you incentivize the destruction of another's property? Answer: Nothing good. There are any number of state law causes of action (conversion, theft, misappropriation, interference with contracts, even potential criminal charges for theft/vandalism), plus a potential breach of contract action against the retailer depending upon the specifics of the retail sales agreement (for which the retailer may turn around and sue the incentivizer).
Bottom line: incentivized destruction of competitors' products is not something I anticipate will make its way to the video game industry because the ownership issues involved with copies of software are not as clear cut as they are with print media.
