While much of the buzz about Spore has revolved around the DRM and now the lawsuit, what's important to remember is that the DRM isn't in place just to "fight" pirates. No, the activation limit and the one-account system are also strong deterrents against selling your copy of the game; EA would much rather everyone bought it instead of taking part in a second-hand market. As one Ars reader found out, buying the game used may be a risky proposition. The question is open: is EA breaking the law?

According to the buyer, his copy of the game was purchased from "a crotchety old redneck," but the buyer didn't get the necessary information needed to get into the game's main account, and thus couldn't play. A call to customer support was no help; sellers have to give the purchaser the account name and password, almost like a World of Warcraft account. Unless buyers get that information from the person or store they get the used game from, nothing can be done. EA will not let you open another account.

The portion of the game's EULA that deals with sales is interesting; the company technically allows it, but EA won't make it easy on you. "You may not be able to transfer the right to receive updates, dynamically served content, or the right to use any online service of EA in connection with the Software," the agreement states. "You may not be able to transfer the Software if you have already exhausted the terms of this License by authenticating the Software on the allowed number machine [sic]. Subsequent recipients of this License may not be able to authenticate the Software on additional machines."

Could EA get into legal trouble by limiting the "first sale" doctrine, or is the company just trying to annoy you into not trying to sell the game? We brought the question to Fred von Lohmann of the Electronic Frontier Foundation to find out.

"Those are the right questions," he told Ars. "Rightsholders are increasingly using 'contracts' (EULAs and TOS) to end-run the traditional limits imposed by copyright—such as first sale, fair use, reverse engineering, etc. These strategies are being tested in court right now, and EFF has been involved in those cases—and intends to continue being involved."

He lists a few cases that are making their way through the courts, such as UMG vs. Augusto. An eBay seller was selling his "promo" CDs, even though the sticker on the cover stated that this was forbidden. EFF won that case, although UMG is appealing. "So just affixing a label isn't enough to trump first sale," von Lohmann told us.

In Vernor v. Autodesk, a man bought, and then sold, a copy of AutoCAD on eBay. The thing is, he didn't open the package, so he never clicked on the "I agree" box in the licensing agreement. "He won a preliminary victory a few months ago, although everyone expects that AutoDesk will appeal," von Lohmann explained.

Few people have the time, energy, or money to fight these things out in court, though, and the fact remains that you can resell your copy of Spore. You just need to provide the buyer with the information for the account you created when first playing the game, though EA may not give buyers any more hardware activations, and the company won't promise to allow used games access to the Spore community.

Illegal, though? Probably not, although the courts are still working out many of these issues. "The law in this area is a bit of a jump ball right now," von Lohmann told Ars. Unfortunately, while the legality is being worked out, it's the customers who suffer.