To coincide with the release of the Nintendo Switch 2, the press section of the www.jeuxvideo.com platform published an article on the ownership of contemporary video games. Matthias Kulanhk, aka “Matt_Clank,” journalist and Head of the Home, Image, and Sound department for JVTE, discussed the specifics of Game Key cards with Pierre-Xavier Chomiac de Sas, a lawyer specializing in digital law.
Video game law has become more complex over the last decade due to the increasing density and size of game content.
In response to technological, economic, and cultural challenges, digital distribution has become the norm, significantly reducing the costs and time involved in setting and delivering games, while also providing greater flexibility for both consumers and creators.
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Nintendo Switch 2: Game Key Cards, a hybrid video game media format
The announcement of this new console’s features caught the attention of legal experts interested in the format of its cartridges: Game Key cards.
A new format for video game media, Game Key cards differ from traditional cartridges by not containing a copy of the game itself, but rather an activation key that allows the complete game to be downloaded to the console via the internet. The main reason for this is the large size of games compared to the capacity of physical cartridges, which represents a significant cost for publishers.
However, unlike the prepaid activation cards that have existed in the industry for several years, the Game Key card’s activation key can be perpetually reactivated, thus allowing for their exchange or sale.
Important note: once the game is installed, the game key card must remain inserted in the console to play.
This Nintendo innovation represents an original response to a significant conflict between video game publishers and players in a context of near-total digitalization of video game media.
The game key card embodies a hybrid video game medium, combining physical media with digital distribution. This flexibility offered by digital technology maintains the existence of a physical object, owned by the buyer and therefore free to transfer or resell.
Video game law: ownership of game key cards
Game Key Cards are part of a contemporary battle between publishers and players over the ownership of modern video games. Indeed, the concept of ownership in video games has profoundly changed: players no longer have ownership rights to physical game media, but only receive a digital license.
This transformation has major legal consequences: the theory of exhaustion of rights, which previously allowed the resale of software after purchase, no longer applies to digital games. Thus, users cannot resell or transfer their games as they would with physical goods.
Find our specialized publication on this topic:
Video game law: Ownership versus license to use
Furthermore, players lose all rights to their virtual items if the publisher terminates the contract, generally without compensation. Although recognition of ownership rights over these digital objects is being considered—particularly because they have genuine economic or recreational value—publishers’ total control prevents such a legal development.
In 2024, players of the game “The Crew,” published by Ubisoft, were horrified to discover that the game’s servers had shut down, making any further use of the game impossible.
This case perfectly illustrates the limitations of the rights granted to players since the end of physical media sales for video games: players are dependent on the terms of their game licenses.
More information: https://pcs-avocat.com/actualites/presse-avocat-jeux-video-thecrew-ubisoft/
