Legal intern Suzanne Castillo co-authored this post.
Playstation’s decision to kill physical game discs is the latest attack on our diminishing rights to access and engage with culture digitally. Rent-seeking corporations and negligent lawmakers share the blame–and they can do better.
We’ve seen the same playbook used in the move to digital distribution of film, TV, and music: draw in customers with the convenience of a digital download, then limit physical access and move the goalpost on what it actually means to “own” a piece of media. The end goal is to turn the customer into a renter, stuck making regular subscription payments for access. Gamers are right to sound the alarm, and we must take this moment to fight for digital ownership before it’s too late.
Disk Space Invaders
Depriving gamers of physical discs leads to another obvious and immediate cost: data. Unlike other digital media like film and TV, video games require a ton of storage. Access to high speed internet is still abysmal in the US, making the high-speeds needed for digital game downloads a luxury some of us may take for granted. For many, a modern game can take days and exceed their data caps.
This made physical discs, particularly for the biggest AAA titles, a logical choice that also largely spared gamers from losing traditional ownership rights. With physical disks, the cost of storing the game was included in the purchase.
Own or Be Pwned
Limiting customers to digital copies also pushes gamers further into rent-only copyright culture.
Physical media comes with a “right of first sale,” which means you can lawfully share, resell, alter, or destroy your own copy of a copyrighted work. This right has also helped protect the emergence of alternative community servers, and emulator addition of online play to games from the dial up era.
But courts have held that digital media doesn’t carry the same right, meaning no such protection is afforded to digital purchases. Your ability to freely share games with friends or pass them on to family members becomes totally subject to the whims of the distributor.
So, for example, a digital-only approach effectively guts the second-hand market for games. Saving some money with a used game and recouping the costs by reselling are no longer an option. Even with steep discounts and holiday sales, this raises the minimum cost of engaging with the medium at all.
The inevitable conclusion of the move to digital-only purchases is to lock gamers into subscription models, making their access totally dependent on the distributor— or, several distributors, as we’ve seen with major TV and movie streamers. A handful of companies actually own the games, and your only option is to regularly pay for fractured libraries of games you may never play and will never truly own.
Achievement Locked
Since digital games are easy to copy, distributors and publishers argue that they are in an arms race against piracy. The irony is that law-abiding customers consistently suffer collateral damage.
Most digital distributors lock down the content they offer with restrictive user agreements and digital rights management (DRM) software. DRM software, in particular, imposes onerous controls on the game — like forcing internet connection for single player games or modifications that harm performance — and can even introduce serious privacy and security concerns. Any gamer or researcher in the US who wants to reduce this burden by removing or modifying that DRM risks a lawsuit, thanks to Section 1201 of the Digital Millennium Copyright Act (DMCA). This federal law makes it illegal to alter DRM software, and is a beloved tool for companies trying to restrict how we can lawfully use our purchases — whether it’s a copy of the newest tractor simulator or a literal tractor.
And since much of this DRM is tied to user accounts, ownership of a game is also revocable and modifiable for any number of reasons outside of your control. Error in your subscription payment? Your account got hacked? Licensing deal falls through with a major publisher? Developers want to kill the game in an update? All of this can limit or change your ability to access the game long after your so-called “purchase.”
Level-up Ownership
Policymakers can and should work to restore our ownership rights for the digital age.
That starts with legal protections ensuring that the same rights that apply to physical media apply to digital media. Next up? Reform Section 1201 of the DMCA to clarify that it does not forbid fair uses.
At the state level, we need meaningful consumer protections. Some promising models include California’s AB 1921, which would clarify what customers are actually paying for on digital storefronts and ensure some protections for maintaining discontinued games. The gaming industry has done its best to kill the bill, including claiming that private community servers are illegal.
If you bought it, you should own it, and EFF will continue working to mitigate some of the worst harms of the DMCA 1201, defending modders, and fighting deceptive licensing that makes culture less free.
