There is a difference...
There is a difference... between software and abstracts, embedded or otherwise, and hardware/material goods.
With software and other abstracts you purchase a license to use the product, not the product itself. It is completely reasonable for a publisher to have the ability to limit rights in the case of a license... A phone company shouldn't have to allow service transfers, a software company shouldn't have to allow the license to be sold to a second party, etc. Regardless of whether we agree with those terms, a business should be allowed to license their products in whatever manner they choose, the free market is the only body capable of properly regulating this through supply and demand. The same concept applies to material goods in terms of market self regulation.
The market will respond to any attempts to allow outrageous licensing by creating a demand for GPL/BSD/etc style licenses and sales agreements, a supplier will step in, and the demand will be filled. I don't see this being much of a problem since the rights holders are publishers, record labels, and manufacturers rather than individual designers and performers usually.
@Michael Dunn: I would argue that the games *are* high value if for no other reason than people are willing to pay those high prices. It's like gold or diamonds.... they are only valuable because people are willing to pay high prices, supply and demand. Unlike silver, Uranium, or other more industrial rare metals, they have no inherent value other than being considered rare/pretty/valuable. (I'm not going to consider gold as a valuable industrial material due to the extremely small amounts required for its industrial applications; powders and plating in most cases.)
My only real concern within all of this is that every time the US supreme court allows for greater regulation of *anything* it creates more problems than it solves. Just look at the unintended/side effects of every major regulation in the US for the past 100 years. Our war on poverty has increased poverty, economic regulations and taxes have punished the lower and middle classes, drug regulations have made drugs far cheaper and more potent (adjusting for inflation), overzealous environmental regulations have targeted non-existant problems causing grief for the lower and middle classes, healthcare regulations have stifled innovation and research while increasing the cost of care, etc.