When you walk into a store and buy an apple, you own the apple. When you walk into a store and buy a TV, you own the TV. When you buy a PlayStation, an Xbox, or a Nintendo Switch, you own the gaming console. But when you buy a game for the console you just bought, you don’t own the game. Instead, you just own a license to use the game.
Licenses are primarily governed by the Copyright Act, specifically 17 U.S.C. § 101. The Copyright Act outlines the exclusive rights granted to copyright holders, including the rights to reproduce, distribute, adapt, publicly perform, and publicly display the copyrighted work. Id. at § 106. Additionally, the Copyright Act includes provisions for the termination of copyright licenses under certain conditions. Id. at § 203.
A copyright owner can license any of these exclusive rights, either exclusively or nonexclusively. An exclusive license is considered a transfer of ownership and must be in writing and signed by the copyright owner or their authorized agent. Id. at § 204(a). While non-exclusive licenses, on the other hand, allow the licensor to grant the same rights to multiple parties and these licenses do not have to be in writing. Foad Consulting Group, Inc. v. Musil Govan Azzalino, 270 F.3d 821, 825 (9th Cir. 2001).
Back in the old days, it used to be that when you walked into a store to buy a new video game you were given a cartridge or a disc. Today, however, most games are now purchased digitally and installed onto the console or computer. When you purchase a video game, there is an End User License Agreement (EULA) between you and the company making the game that says you are licensing the game from the company that produced it while also outlining the grounds for terminating the license. For example, Ubisoft’s EULA states that Ubisoft’s termination will be effective upon (a) notice to you, (b) termination of your Ubisoft Account (if any), or (c) at the time of Ubisoft’s decision to discontinue offering and/or supporting the Product. Ubisoft, End User License Agreement, legal.ubi.com, https://legal.ubi.com/eula/en-US (last visited June. 27, 2024).
Now, you might be thinking “I’ll just go to my local store and buy a disc version of my game and then I will still own it”. However, even though you can still buy physical copies of video games, most games do not physically have any portion of the video game on the discs anymore. Instead, when you buy a disc version of a video game you still download the game onto your console, and the disc is just acting as your license to play the downloaded game. This change may cause games you buy today, whether a physical copy or online download, to no longer be your game. Some video games have become unplayable, like Ubisoft’s The Crew, due to companies either revoking their licenses or shutting down the servers the game is running on.
As of now, there is a grey area as to what video game companies can do, and what legal recourses there are for consumers. For example, Ubisoft’s EULA states that it can shut down your license for any reason. So, unless a case is brought before the Federal Courts challenging the enforceability of that provision for EULAs, it will fall on Congress to step in to provide consumers with protections against video game companies revoking their licenses. Either by expanding consumer protection laws or by expanding the Copyright Act.
If you or someone you know is trying to protect your license or protect your copyright on the internet, it is important to act quickly and seek legal assistance. At King Law Offices, we understand the sensitivity and complexity of these situations and are here to help. Our team of experienced attorneys in North and South Carolina can guide you through the service process and the rest of your legal issues. Contact King Law Offices today at (888) 748-KING (5464) for a consultation.
