Disclaimer: Before we get into it, I want to point out that I am in no way an expert on law, licensing etc. I’m just a dev talking about what I’ve learned from reading into software licenses for my own projects. Please get in touch if anyone has any corrections.

For those who follow me on BlueSky, you’ll have seen a few posts of mine in the past around video game ownership, and that’s because every now and then, someone in the industry does something which causes a lot of people in the media to bluster about “you don’t own your video games anymore”. I don’t want to sound like I’ve got my head in the sand and pretend I don’t know what’s meant by game ownership, however not all of the things I’ve heard are correct or possible, so that’s what I want to clear up here.

There seems to always be a bad guy in the argument of game ownership. The current bad guy is Sony¹ who have just announced that they plan to stop printing physical media in favour of a digital only approach. This has multiple downsides to the end consumer, but for now I’m going to focus on the licensing side of things. When you buy a game (or any piece of software, or movie, or song), the main thing you’re purchasing is the license for that piece of work. The fact that in the majority of cases, the RRP is the same for a game for both physical and digital reinforces that the value a consumer spends on the physical medium is negligible.²

So what is this license you’ve bought? Put simply, its the rights holder (publisher, record label etc.) saying “I grant you permission to use this piece of work for x purposes with y restrictions”. In the world of TV and movies, this is usually played front and centre when you insert a disc. You’ll see messages around not being allowed to make unauthorised reproductions and that it’s for private use only, so for example a cinema couldn’t just buy a DVD and charge entry for screening it as the license restricts it. It also means you’re not permitted to rip a movie and upload it to YouTube. A license for video games is along the same lines, some even force you to read and accept the End User License Agreement (EULA) before you reach the main menu for the first time. Again, like movies, this will say things along the lines of “no unauthorised reproductions”, however since games are interactive this license will have a lot more clauses to cover things like cheating in online play, or using the game for illegal activity.³

It’s pretty much always been that case with any kind of software that you purchase a license and not the software itself, so why are a lot of gaming news sources all of a sudden decrying licenses as anti consumer? It’s the alignment of two scenarios: the first being that for software, these licenses often contain a clause which states that the license and be revoked at any time, the second being the increase in digitial delivery of these licenses. This is in addition to more minor reasons such as digital licenses not being as shareable as physical ones.

It’s been possible for publishers to revoke a games license at any point for a long time, it’s just been a bit more complicated such as requiring the game to connect to the internet to ping a server with a license key which would then check to see if that license key is blacklisted, if not, then happy gaming, otherwise your license has been revoked. I’m not aware of this being implemented anywhere for single player or offline games as this is a heavy handed approach. For the publisher, this means hosting and maintaining a server to perform the license key checks, a cost which probably outweighs the benefits except in the case of online multiplayer games³. It is also something which could negatively impact sales, SimCity 2013 being an example of a game which received a lot of backlash for being an always online single player game, with EA choosing to not create more games in the series since.

Software licensing starts worry people when the games are only distributed digitally as this gives publishers a second way of revoking your license: not letting you download the media anymore. This method doesn’t have any of the overhead of maintaining a server with a blacklist. This method, if anything, is a cost cutting exercise for the publisher as they’ll no longer be paying for the bandwidth for users downloading software. It means that if a publisher has a sequel to a much beloved game coming out, they could choose to not allow users to play the previous games in the series, forcing users to purchase the new game instead. This has played out with examples being Overwatch, which was replaced by Overwatch 2, forcing users to play the sequel and Warcraft 3: Reforged, a remaster of Warcraft 3, which forced unwanted Reforged changes onto players of the original Warcraft 3. Outside of gaming, this scenario has happened recently, again with Sony, who have removed access to movies which users had bought licenses for without compensation, citing a failure to renew a licensing agreement with the studio as the reason, and that isn’t the first time Sony has removed media from their offerings.

Other problems with digital licencing is the shareability of the media. Having a game on a disc means it’s easy to lend to a friend. Digital games often tie licenses to a single account, and the online distribution platforms don’t have ways of selling your games on via an online marketplace. The companies have little incentive to pursue this since it would be in direct competition with their own marketplace for new games. Without physical media, it means that the secondhand marketplace doesn’t exist for digital games. This benefits the publishers as it means you’ll need to purchase a brand new game instead of looking at a secondhand market where game reselling doesn’t provide the publisher with any additional revenue. Publishers have attempted to profit from this market in the X-Box 360 and Playstation 3 era by having an online license separate to the rest of the game. Purchasing a new physical game would give you a license for the software and include an “online pass” which was a license to use the software to access online multiplayer. This license was bound to the X-Box/Playstation account it was redeemed against. If you purchased the game second hand, it’s likely that this pass had been redeemed by the previous owner resulting in you being restricted to offline play, unless you headed to the online store of your platform of choice and purchased an online pass for the game which let you play online as if you purchased the game brand new. This was unpopular with consumers for various reasons, digital game sales not being as popular during this time period, confusion with consumers resulting in games being returned because they “don’t work”, lower trade in values resulting in people preferring other games without this system. This system was thankfully fairly short lived.

Another drawback of not having an irrevokable license on physical media is game preservation. Even with these things, there have been countless games that have become completely lost for various reasons, usually because they were never very popular, faded into obscurity and the limited amount of copies of the game may be very difficult or impossible to track down, if it’s even sought after at all. Video games are a form of art, and being unable to preserve them would essentially leave parts of our culture and history lost to time. MMORPGs are very suceptible to this since they’re heavily dependent on server side code. If one day, World Of Warcraft shuts down for good, and no plan is made for the community to take stewardship over it, then the impact it had on both gaming and culture would basically turn it into folklore. Next to consumer protections, this is the main things the Stop Killing Games movement is aiming to prevent.

Not owning your games isn’t a new thing. Technology has evolved, consumer spending habits have moved on, and a company’s reason for existing is to make money. Digital software delivery and consumers buying more digital over physical has given companies more power to look at their balance sheet and make decisions which they couldn’t do previously. So what if you could actually own the game instead of just a license? If I outright bought a game instead of a license then I would own the source code, the assets, the distribution. If I were the first person to purchase the game, then I could make sure that it was the only copy sold by making the game available for free for everyone. I could take the source code and assets and make my own sequels and distribute those. I could take the story and publish it as a book, or turn it into a movie. I’m pretty much free to do what I want with it since I own it. So how much would it cost me to buy this game? There’s an estimate of GTA6 costing $3bn to develop, so considering in this scenario they’d potentially only sell one copy, you’d have to imagine that it would have a significantly higher price tag for it to be worthwhile. That high price tag for a license is a lot more affordable by comparison.

It’s taken me longer to get this published than I originally planned, however Sony have been taken to court and are arguing this exact case. The wording I’ve seen reported is along the lines of “No reasonable person would expect to own a game for $70” and “We’d only be able to sell one copy of a game” which, at face value, both sound like ridiculous statements, however if you dig a little deeper into software licenses and how they work, I don’t think their argument is wrong here.

¹ I spent too much time drafting this. The current bad guy is now Rockstar for planning a digital only release of GTA 6.

² I’m aware that Nintendo have recently announced they’ll be charging prices for physical and digital, where digital games are reduced in price, instead of physical being an increased price. It’s still early to see how this will play out. It does put more pressure on retailers of physical games to match the digital price, so in the long run, this may not make too much of a difference to consumers.

³ Sounds weird using a game for illegal activity, but a clause like this would be a catch all for something which the developers didn’t intend. An example I can think of would be something along the lines of using an exploit in the game to gain priviledged access to a console, allowing you to install custom firmware. I’m specifically thinking of the Wii for this example and whether or not that’s enforceable may depend on your jurisdiction.

⁴ Online games is where you may see licenses being revoked in some form, usually for people negatively impact other players through griefing, cheats, abuse etc. All of these will be laid out in the license agreement. I just want to point out that you usually see complaints if these terms aren’t enforced by the publisher because these bad actors do negatively impact legitimate players, so there is technically an upside for a publisher to be able to revoke a license at any point, in specific circumstances.