Fulcrum I think what he means is that the game becomes the property of the user and he can do with it what he wants, but it's not property transfer as say transfer of intellectual property. That copy of the game belongs to the consumer but not the actual patents and copyrights belonging to the companies involved with the game.
For example when you buy your Toyota Fortunner that car will come with engine management and other kinds of software built in. The car now belongs to you at the moment of purchase. And you can do what you want with it. You could trash it. You could lease it out. You could give it away or resell it. You could take it apart.
But of course you can't reverse engineer it and make a copy and sell that or copy their patents and such. The same here. What this guy means is that it's the same as with the car, a game is the same to the end consumer. It belongs to you. Of course you can't make copies and resell them or take parts of it and create your own game.
But nobody should have the right to terminate your use of that game. Including on digital platforms. If you bought the game on some digital platform the game will have to have the ability to function without that platform. GOG does this well. And Steam said they'd work to allow for the downloaded games to continue to work should their platform die and their servers go offline.
Video games need to be looked at within current data governance laws. Your Toyota Fortuner example is not data; at best, it can be examined as a license within a game that is licensed.
My view remains that a video game license should be respected as property, and that the property is ownership that should be protected as a right. Next, you should look at guarantees that ensure the license owner has reasonable access to a playable video game.
It is unreasonable to expect a video game to be supported in perpetuity by its IP owners; however, the IP owners could entrust their IP, or parts that allow playability, to stewards. Stewards themselves could be another organization or community that ensures that the data is managed and behaves accordingly with the IP owner’s rules. This will also be extended to modding. When you examine accessiblity, you could also argue balancing, OS support, etc.
It is also unreasonable to expect a licensee that owns multiple video game licenses to store a copy. This is where data custodians are important, who store playable versions, but also implement and maintain the data on rules as established by the IP owners. You will still install your game via a license as provided by the custodian.
Everyone is respected.
The challenge, however, is that this can’t be imposed at a loss. Ideally, the sales cycle should continue, and everyone should share the proceeds; hence, licensing will have perpetuity. Monetization could also still be applied and directed by both the IP owners and their stewards.
This is largely applicable to live-service titles. Non-live service titles need protection too, so my suggestion is broad in general.
GOG, themselves, get to do what they do via distribution rights. They have terms, too, to quote:
2. USING GOG SERVICES AND GOG CONTENT
2.1 We give you and other GOG users the personal right (known legally as a 'license') to use GOG services and to download, access and/or stream (depending on the content) and use GOG content. This license is for your personal use. We can stop or suspend this license in some situations, which are explained later on.
They, however, add this:
2.2 When you buy, access or install GOG games, you might have to agree to additional contract terms with the developer/publisher of the game (e.g. they might ask you to agree to a game specific End User License Agreement). If there is any inconsistency or dispute between those ‘EULAs’ and this Agreement, then this Agreement wins.
so their agreement wins, but it does so within their distribution terms I will touch on, but to continue,
17. TERMINATION
17.2. Our right to terminate the Agreement. If you materially breach this Agreement, we reserve the right to suspend or cancel your access to GOG services and GOG content. By material breach of the Agreement we mean a serious breach which could cause significant harm to GOG, GOG users, as well as, in particular breach of the provisions of section 11 above or GOG Code of Conduct. If we suspend or cancel your access to GOG services or GOG content we'll take reasonable steps to contact you to explain why we have done this and what (if anything) you can do as a result.
17.3 It seems very unlikely, but if we have to stop providing access to GOG services and GOG content permanently (not because of any breach by you), we will try to give you at least sixty (60) days advance notice by posting a note on
www.GOG.COM and sending an email to every registered user – during that time you should be able to download any GOG content you purchased.
They say this agreement might not be disclosed to the public, though they share it publicly.
Last update: January 24th, 2023.Dear Partner! These GOG Distribution Terms apply to the distribution of Publisher Games via the GOG Platforms and form part of the Digital Distribution Agreement entered into between the Publisher and GOG. For ease we have provided short explanations of some
sites.google.com
3. Ownership and Intellectual Property Rights
3.1. Ownership. (9) The parties agree that as between GOG and Publisher: (a) GOG will remain at all times the sole and exclusive owner of the GOG Materials; and (b) subject to the licences and rights granted to GOG in the Agreement, Publisher will remain at all times the sole and exclusive owner of the Publisher Materials.
(9) This section reassures that you’re the owner to IP in your Game(s) and GOG is the owner to IP in the platform.
There is a provision:
(15) The agreement lasts at least as long as there is any valid DDF.
In case the agreement is terminated GOG users that already bought your game can still download and play it.
Just note that you will have 60 days to download that GOG content (or its installer). GOG is also smart not to distribute any live service titles.
Steam, however, said things, but they haven't made any promises. They do, however, allow anyone who has bought a license to download the game attached to the license that has been discontinued. They don't place that onus on you. This, however, may include live-service titles that aren't playable anymore. I can still install this game, but I can't play it:
Escape an astonishing disaster in Ring of Elysium, a battle royale shooter developed by Aurora Studio.
store.steampowered.com
Then there are IP disputes, and it is well covered by the video, that covers another topic, posted in this thread,
Another great video from Moon Channel. Wanted to post this in the Switch 2/Stop Killing Games thread, but I do what I want to do. A pretty deep dive (for an average Joe like me) into a pretty depressing topic: IP Law. There is mention of SKG's (futile) attempt to change things, but by the look...
mybroadband.co.za
In this case the situation is not even retroactive. Game publishers would have to allow these games to continue, broken or not. And maybe DRM free versions to be made available for download should the platform die. And if servers are required, some sort of code or information to allow third parties to run such servers with their own hardware and money should be permitted. Game publishers will have to get used to a new reality and will have to decide whether they wish to continue to publish games or not. If they decide it no longer makes sense for them to publish games, other game publishers and devs would step in. Europe is a huge market. Not a single publisher will abandon it and they'll just adapt to the new reality, should the European Commission force this on them. I support this fully. If you want to sell a game for Windows 11, that's fine but if it includes activation code to a server to check if the game is allowed to run, once that server goes offline the company will be obliged to provide a workaround, eg a patch to allow these games to run. They will have to factor this in when deciding to publish such a game or write it.
DRM as a mechanism that is installed is expected to be decoupled once a game is retired by the IP owner. DRM, as in digital rights management, as with law, will continue. However, it is not simple when a game's logic resides server-side. Again, stewards and custodians can reasonably solve this problem in cooperation with the IP owners.
The alternative is that the company offers refunds to people upon such a time they decide to pull the plug. If you bought the game and now the game is no longer going to function and the company no longer wishes to provide some assistance for third parties to keep it going or is actively taking down attempts to do so the ideally the law would force the company to offer refunds or store credit, before terminating the game.
This is very much unreasonable. You can't expect to pay $60 to play a live-service title today and expect to get that money returned 10-years later when the game is retired. I have a good idea that live-service titles may be moved to a subscription-only model. Subscription services are also already covered in EU law. EU law does grant minimum protection. This is also why a game such as Anthem is only being sunset now, even though it hasn't been serviced since, possibly, pre-pandemic times. It is, however, in a playable state, though not a good one, but you can access it and play it. Again, stewards and custodians can solve this problem.