Play.com won't give a refund for game because I have opened it

My wife bought me the Call of Duty: Black Ops PC game for Christmas, purchased from a private trader at Play.com. Each time I try to install it, an error message is displayed. I have found online that other people are having the same problem so sent the software back to the retailer as I believe that it is not fit for purpose.
Gary Marshall

As well as being a retailer in its own right, Play.com runs a service called Playtrade, which enables private sellers and businesses to offer goods for sale. The business trader Mr Marshall’s wife purchased the game from issued a refund once the game was returned, even though the trader had no legal obligation to give a refund once the packaging had been opened.

Despite the rights people have under both the Sale of Goods Act (SoG) and Distance Selling Regulations (DSRs), the law as it stands today takes a different view of software. There are two reasons for this: the first is the ease with which digital files can be illegally copied and shared; the second is that software falls between the definitions of a ‘tangible good’ and a paid-for service.

If software is downloaded via any type of network (the internet, for example) you have no protection under the DSRs. Legal experts believe this will change when part of the new EU Consumer Rights Directive is introduced but, even with this change, the protection offered may be limited and unclear.

If, however, software is supplied on a physical medium, such as CD, DVD or USB memory key, and the seal is not broken or the cellophane unwrapped, it can be returned within seven working days in accordance with the DSRs. If the physical product, such as the CD, is damaged, then it is considered to be an inherent fault under the SoG because the disc is a tangible good.

Proving that software is defective is very difficult. To make matters worse, the software itself is not owned by the buyer; in 2011 the High Court of England and Wales ruled that the provision of a licence for software was not a sale of goods, and so one of the key promises in the SoG – that a product will be ‘fit for purpose’ – did not apply.

The Marshalls were lucky to buy from a trader who would issue a refund for software that seemingly would not work as expected.

The EU plan to extend consumer protection to software
The EU Consumer Rights Directive proposes additional protection for people when buying software. Some problems are caused by people buying products that are not compatible with their computer, and often this realisation comes only after the seal on the product is broken. The EU changes propose that retailers must be clear about compatibility. Sellers must also be clear about copyright-protection technologies that could affect how the software is used.