Intellectual property, EULAs (End User License Agreements), digital distribution, usage rights, emulators, and ROMs are all contemporary legal issues associated with the development, operation, and consumption of video games.
On Saturday, January 25, 2025, Pierre Xavier Chomiac de Sas was invited to the Focus Jeu Vidéo program to speak on an episode titled “Did You Read the Fine Print?”, which focused on the contractual framework of video games in relation to players.
Thanks to Patrice Baudhuin & Pipissenlit (AfroGameuses) for this brilliantly summarized discussion: “Sonic & Tarte Tatin”
Find the full event here:
Video game focus – An initiative of the City of Science and Industry
To decipher and better understand the video game medium and its challenges, the Cité des Sciences et de l’Industrie (City of Science and Industry) has, for several years, produced a program called “Focus Jeux Vidéo” (Video Games Focus) in partnership with the Afrogameuses association. This program aims to present, inform, and raise public awareness about the industry and its cultural and social impact.
Classified as a form of mass media or a major cultural medium, the program addresses a variety of topics through interviews with experts and creators in the field—developers, researchers, historians, and artists.
Hosted by François Giraud in the e-LAB, a journalist and gaming specialist, the discussions have covered subjects such as virtual reality, artificial intelligence, esports, and competitions.
Each episode is broadcast live on the Cité des Sciences et de l’Industrie YouTube channel and is available for replay.
Video game contracts – General terms and conditions of user license
In the absence of a specific legal framework, video game law relies primarily on contracts governing the conditions of access and consumption by publishers. Although the French General Tax Code defines video games as simply recreational software, no comprehensive law specifically governs the property rights associated with video games.
Video game contracts. This lack of a clear legal definition stems from the diverse forms that video games can take. Consequently, contract law determines the applicable legal regime for their ownership and use. In this respect, it is characterized by contractual clauses granting publishers maximum control over access to and use of their titles. This contractual reality raises crucial issues regarding transparency and consumer protection in the face of publishers’ business practices.
Confusion between purchase and rental. The conflation of terms used by publishers in their terms and conditions is regrettable, creating ambiguity regarding the rights granted to players. Indeed, commercial offers often present the acquisition of virtual items or in-game currency as “purchases,” while contracts systematically refer to usage licenses.
Given the significant player participation in updating, improving the user experience, and even creating new content related to video games, particularly mods, publisher contracts governing ownership of these creations often remain problematic or limited.
Mods and video game contracts. Legally, mod creations are considered composite works under the Intellectual Property Code. By exploiting all or part of the elements of the original video game, the use of the mod is necessarily subject to the authorization of the game’s copyright holder: the publisher. Otherwise, the users will be guilty of copyright infringement, unless the video game has entered the public domain. Provided they can demonstrate the creation of original elements in terms of gameplay, scripts, graphics, etc., mod creators may benefit from copyright protection only on elements external to the original game.
Built into the very development of video games, publishers are increasingly strictly regulating the use and exploitation of these mods. It is therefore common to find in End User License Agreements (EULAs) several clauses providing for general or even discretionary control of content generated by the player community, prohibiting, for example, the use of pre-existing copyrighted content, the integration of illegal, inappropriate, or offensive elements, etc.
Law and video games: Who owns the video games purchased on Steam?
A major issue associated with video game law, the question of ownership has undergone a slow evolution correlated with the dematerialization of purchases and consumption patterns:
Exhaustion of rights. Linked to the legal principle of exhaustion of distribution rights, it is traditionally considered that the copyright holder of artistic content (book, image, film, music, video game) loses control over the work once it is sold.
However, when the work in question does not have a physical medium (floppy disk, CD, DVD, printed copy), it is no longer a “tangible object” but a digital service, which allows platforms to restrict the resale or secondary distribution of files or user licenses.
Steam vs. UFC Que Choisir: Ban on reselling a video game without physical media. In recent years, French courts have indirectly addressed the issue of video game ownership through the analysis of the terms and conditions (EULA) of the Steam video game distribution platform, owned by the publisher Valve, which was challenged by the consumer protection association UFC Que Choisir.
Through several rulings appealed to the Court of Cassation (Civ. 1ère, Oct. 23, 2024), the judges ultimately confirmed the absence of a transfer of ownership of the game in the case of digital sales. This decision echoes the Cryo precedent and confirms a now clear position on the status of video games offered through digital distribution platforms such as Steam, Battle.net, Xbox Game Pass, PlayStation Store, etc.
This decision is in line with the case law of the Court of Justice of the European Union (CJEU), which had already clarified that the provision of digital software (such as video games) does not fall under the distribution rights subject to exhaustion, unless these products are governed by specific directives such as Directive 2009/24/EC (concerning software). Since video games are complex works, they are not subject to this regime and are therefore governed by Directive 2001/29/EC, which does not provide for the exhaustion of rights for digital objects.
In practice, players only own a user license and cannot resell any video game title, digital object, or virtual currency purchased.
Emulators & ROMs: Can we (re)develop old games and consoles?
During our discussions, we also addressed the issue of video game emulators and ROMs and their legality.
Often driven by a desire to replay older video games that are less or no longer available for purchase, many gamers have gradually offered redeveloped versions of video games. These practices raise significant legal questions, primarily concerning intellectual property.
Even if a video game is no longer commercially available, it remains the property of its development studio for the duration of intellectual property rights protection. However, recreating consoles and/or older games often requires developers to have access to BIOS files or lines of code, which are protected by technical protection measures.
Valid for both old and new games, circumventing these measures to generate ROMs or emulators can constitute unauthorized software adaptation and may lead to civil and criminal prosecution.
A recent example involved Nintendo and the Yuzu emulator, which allowed users to play Switch console games on other devices. The conflict ended with a settlement agreement in which Yuzu paid Nintendo $2.4 million, ceased distributing its software, and transferred the domain name associated with its service to Nintendo.
The cultural selection of video game specialists
The firm happily participated in the program, highlighting three cultural offerings:
Calvin & Hobbes, the iconic comic strip created by Bill Watterson, is a cult classic thanks to its unique blend of humor, poetry, and reflection. The adventures of Calvin, a child with a boundless imagination, and Hobbes, his stuffed tiger who comes to life at his sight, offer witty dialogue and situations that are both funny and profound.
Legion, the American science fiction series created by Noah Hawley, oscillating between thriller, drama, and artistic experimentation, distinguished itself through its impressive creativity and visual aesthetic. In this sense, it stands out as a unique and distinct piece in the saturated world of Marvel Cinematic Universe adaptations, of which it is technically a part.
London Grammar, The Greatest Love. Hannah Reid’s pure and memorable voice, set against often experimental arrangements, is highly enjoyable for quiet work. For those who prefer denser texts, Hugo TSR & his Artificial Coma.
