We reached out to Hal Halpin, the President of the Entertainment Consumers Association, to see if he could explain the situation. "Probably the most important thing for consumers to understand when discussing this subject is that they're not buying a product to own, but rather purchasing a licensed copy—restricting use to the Terms of Service or End User License Agreement," he explains. 

"Unlike a console game, which you purchase and own outright, PC games have severely restricted ownership issues due to the nature of the transaction. If merchants choose to break street date and sell the product early, consumers are still agreeing to the licensing terms that the publisher includes in the click-wrap." So if the terms are that the game requires activation, and that will only be made available on a specific date, there is really nothing anyone can do.

Halpin and the ECA have long argued for more open end-user licensing agreements. "All of this of course, really goes to the point that we need to drive toward a standardized EULA and more general openness about what publishers are selling and consumers are buying. This Borderlands example lends even more credence to that position," he told Ars.