Steam, PlayStation, Xbox, Nintendo: what will happen to your games if the stores close?

business news Steam, PlayStation, Xbox, Nintendo: what will happen to your games if the stores close?

The smell of license

What could be worse for a player than to realize that he can no longer launch a game that he has nevertheless purchased? In the month of April 2022, the famous site Kotaku revealed that certain PlayStation 3 and PlayStation Vita works purchased digitally could no longer be launched by their owners when re-downloaded. The reason is both comical and slightly frightening: mysterious license expiration dates set at 1970 have crept into the settings of affected apps. Several Internet users have complained about the impossibility of replaying titles that have been acquired, such as Chrono Cross, Street Fighter IV, Chrono Trigger, Gex 3D: Enter the Gecko, Final Fantasy VI, Helldivers, Final Fantasy IX, Tekken Tag Tournament 2 or even HTR+ Slot Car Simulation. “Sony’s liability could theoretically be engaged if this blocking was deliberate via software manipulation, and intended to push players to acquire new games, which does not seem to be the case here.” explains Nicolas Bressand, lawyer at the Lyon Bar, expert in intellectual property law, contacted by email on April 22, 2022.

This bug which entered Unix time (the first day of the calendar that many computers use, namely January 1, 1970) in the expiry date of a handful of software inevitably raised the thorny question of the right to ownership of intangible software, while making us think about a future where everything we have acquired in digital format suddenly – and arbitrarily – becomes obsolete. “The withdrawal of a game, except in the event of a fixed-term license provided for in the contract, could constitute a fault on the part of the seller since the latter would prevent the buyer from using the intangible asset he has acquired.” warns Nicolas Bressand. “The buyer could therefore in principle seek the liability of the seller and obtain total or partial reimbursement of the amount paid in return for the game. But all this remains theoretical, the interpretations made by the courts of the applicable law and the contractual conditions of the platforms remaining uncertain“he asserts.

On consoles, the outages of Xbox Live and PlayStation Network have also highlighted the fragility of access to games purchased on the Microsoft Store and the PlayStation Store. Recently, the site Windows Central ventured to explain what prevents launching softs even 100% solo when the servers go off the rails. The main cause is based on three letters: DRM, for Digital Rights Management. In summary, when a user buys a game on an online platform, the access rights to the latter are then linked to the account that acquired it. Most of the time, downloading an app is enough to register the property. But on rarer occasions, it is necessary to launch the game at least once to validate this step. This explains why during a breakdown of online services, it is impossible to launch programs for the first time. Additionally, if the owner of a game changes primary console, license rights expire until re-authentication (via a download or launching a game for the first time). If distribution platforms stop, DRMs could play troublemakers.

Blind trust in key leaders

Who could seriously consider the disappearance of Valve/Steam, Microsoft/Xbox, Sony/PlayStation or even Nintendo? Except Michael Pacher, that goes without saying. These companies make billions of dollars and are essential in the current video game landscape. Despite everything, all it takes is a series of bad decisions, a takeover, or a major geopolitical event for yesterday’s jewels to be adorned with chrysanthemums the next day. These fatal but pragmatic omens animate from years various discussions on the ability of our video game behemoths to guarantee access to dematerialized games purchased even in the event of permanent closure of their services. We contacted the main manufacturers who did not wish to give us more details.

So far, the main manufacturers have striven to respect the implicit contract signed with the player who married the all-digital. By ensuring the redownloading of apps purchased on consoles that no longer have online stores, first of all. In the past, Nintendo has effectively maintained the redownloading of Wii games despite the closure of the Wii Shop, which Sony has also done for its PSP. By promising, then, that the purchased games will remain accessible in the future. This is what Nintendo did when the announcement of the closure of the eShop on Wii U and 3DS. This is also how Sony proceeded when the Japanese group had, for a time, planned to stop the PlayStation Store on PlayStation 3 and PS Vita. As for Microsoft, the American giant provides Windows Central that once a license is attached to an account, it will remain so”for all time”. That being said, there is no indication of what would happen to the dematerialized games acquired in the event of the closure of Valve/Steam, Microsoft/Xbox, Sony/PlayStation or Nintendo. Keeping a place to download the games costs money, because it requires servers. And preventing players from being blocked because of DRM concerns requires a real policy related to the preservation of immaterial good. “In the event of a closure of services, there is every reason to think that players would be dependent on the goodwill of the operator who could, in the best case, give users the possibility of continuing to play with a local copy” summarizes Nicolas Bressand.

At the discretion of the platform owner

Either it’s about Valveof Microsoftof sony or of nintendoall of these giants offer the same terms and conditions when it comes to downloading games. “All digital goods are licensed, not sold” can we read in the lines of the license agreements. “You may lose access to digital assets or have the nature of your access changed” further stipulate the rules. “In most cases, we see that the terms of use of the platforms do not recognize the player any ownership of the downloaded game” indicates Nicolas Bressand. He adds : “The customer generally only has a right to use the game which is licensed to him, without the possibility, for example, of transferring this license to a third party. Thus, for example, the Steam customer accepts by using these services that the games are “licensed, not sold”, which therefore does not confer any right or title to them.”.

The intellectual property lawyer nevertheless mentions a case in France where the case law has challenged this practice and applied a principle “exhaustion of the distribution right” of the digital copy of games to conclude that it was abusive to contractually prohibit the resale of software purchased on Steam (TGI Paris, Sept. 17, 2019, No. 16/01008). “This is a form of acknowledgment of ownership over the digital copy of the dematerialized game, although this decision is criticized and the Court of Justice of the European Union took the opposite position a few months later, namely resale ban” he specifies. He concludes : “applied to the hypothesis of a platform closure, this French decision could imply that the operator would be required to offer players the possibility of continuing to use their games despite the closure of services. But in practice, the dematerialized game purchased on a platform such as Steam was not designed for external use. There are thus technical limitations to the exploitation of these games which prevent, in fact, their resale or their use outside the platform.”.

Covered by terms of use that do not recognize any ownership in the player, the video game giants benefit from an advantageous legal framework giving them the right to decide which titles from our virtual toy library will be withdrawn from us. Consequently, nothing obliges these behemoths to ensure access to purchased content in the event of permanent closure. This is enough to comfort the defenders of the physical format who will continue to buy Blu-Rays in a hurry, the lifespan of which is estimated by some experts at several hundred years.