Invited back by Malik Ammich, president of the GDMK association, which specializes in providing information and support to young entrepreneurs looking to develop their video game projects, Mr. Chomiac de Sas discussed the common mistakes developers and young studios encounter when launching their businesses.
Previous presentation on video game monetization and protection:
The topics covered this time include:
- Structuring activities for video game development;
- Contract content for interns/employees/freelancers/etc.;
- GDPR compliance;
Find the full exchange between the GDMK guild and Pierre-Xavier Chomiac from Sas:
The firm offers a consolidated version of these issues, accessible here:
On April 28, 2025, the law firm PCS Avocat was interviewed by Nicolas Jucha on the Play Smart program to discuss the complex issue of video game ownership, particularly in its digital format.
Invited alongside Morgane Falaize (President and Co-founder of Women In Games France, Minuit Douze), Mickaël Dell’ova (founder and game designer of EthicAll Games), and Anne Dévouassoux (President and Chief Operating Officer of SNJV, Spiders/Nacon), Pierre Xavier Chomiac de Sas presented the landmark legal dispute between the consumer association UFC Que Choisir and the video game distribution platform Steam.
The Play Smart program also explored topics related to the role of women in the French video game industry and the use of video games as a tool for social inclusion.
Find the link to the full interview here: https://www.bsmart.fr/video/28437-play-smart-01-mai-2025
Play Smart / B Smart: an online media outlet dedicated to the video game industry
Launched in 2025, the show Playsmart, broadcast on the B Smart channel and hosted by Nicolas Jucha, is dedicated to the video game industry.
Through thirty-minute segments, the show analyzes the economic, technological, social, and geopolitical challenges of the video game sector, featuring industry professionals and experts to decipher current events, market trends, and the major issues facing the world of video games, both in France and internationally.
“Playing is good, playing smart is better,” the show’s slogan, reflects its aim to provide in-depth and insightful analysis of the gaming world, including its particularly interesting legal issues.
UFC Que Choisir vs. Steam: Exhaustion of rights in the field of video games
The legal dispute, which began in 2015, was initially resolved in favor of the consumer association UFC Que Choisir by the Paris Judicial Court. The clause in Steam’s terms and conditions prohibiting the resale of accounts or digital video games purchased on the platform was deemed abusive and disproportionately infringing on players’ rights.
In a widely discussed ruling dated October 21, 2022, the Paris Court of Appeal overturned the lower court’s decision, finding the clause in question to be valid. The Court’s reasoning was based on the interpretation of European directives governing copyright and software.
The Court considers that Directive 2001/29 on “general” copyright applies, unlike Directive 2009/24/EC specific to software. It follows that there is no exhaustion of rights for digital video games.
Another important element in this decision is that the Court of Appeal declined to refer a preliminary question to the Court of Justice of the European Union regarding the interpretation of these directives: “Should Article 4(2) of Directive 2009/24 and Article 4(2) of Directive 2001/29 be interpreted as meaning that the right to distribute a digital copy of a video game is exhausted when the purchaser has made that copy, with the authorization of the rights holder and in exchange for remuneration corresponding to the economic value of that copy, by downloading a copy of the computer program enabling the use of the video game on a computer via the Internet?”
UFC Que Choisir vs Steam – Appeal: Are video games subject to software law?
The case was ultimately brought before the Court of Cassation, which challenged the rejection of the referral of this complex issue to the European courts. According to the association, video games fall under the software directive and not general copyright law. Indeed, the distinction between the exhaustion of rights for tangible and intangible copies is not applicable to the video game copy market, where there is no difference between copies on physical or digital media. Therefore, the clause in question should be deemed null and void.
“that video game software is not an accessory and, by its nature, falls under Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009, and not Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001;
that, moreover, with regard to the market for video game copies, or the second-hand market, there is no difference depending on whether the copy is made from physical media or from the internet;
that, by holding otherwise, in order to reject the request for a preliminary ruling submitted by UFC Que Choisir, the Court of Appeal violated Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 and Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001.”
By a judgment of the first civil chamber of 23 October 2024, the Court rejects the appeal and the claims of the association.
1st Civil Chamber, October 23, 2024 (23-13.738): Video games are complex works and not (anymore) simply software.
Regarding the exhaustion of rights, the Court adopts a cumulative interpretation of Article 4 of Directive 2001/29 on copyright and recitals 28 and 29 thereof, which stipulate that the exhaustion of rights does not apply to online services, as copyright includes the exclusive right to control the distribution of a work incorporated into tangible goods. In this respect, the Court cites the relevant judgments of the CJEU, in particular those of 22 January 2015, Art & Allposters International, C-419/13; 19 December 2019, Tom Kabinet, C-263/18; and 3 July 2012, UsedSoft, C-128/11.
She points out that the exhaustion of rights for tangible and intangible copies, which applies to software, is merely a special law and therefore inapplicable in this case. Indeed, a video game cannot be reduced to its software component and is protected as a complete work under general copyright law (CJEU 23 January 2014, Nintendo, C-355/12).
Unlike a computer program designed to be used until it becomes obsolete, a video game quickly reappears on the market once the game is finished and, unlike software, can still be used by new players several years after its creation.
In the absence of reasonable doubt regarding the interpretation of EU law, there is no need to refer a preliminary question to the CJEU.
UFC Que Choisir. Infringement proceedings and preliminary ruling
This solution did not satisfy the association, which decided to pursue a new legal avenue: an infringement procedure before the European Commission against France concerning the Steam dispute.
This procedure aims to challenge the refusal of the French courts to refer a preliminary question to the Court of Justice of the European Union (CJEU) regarding the possibility of reselling digital video games acquired on Steam, a question which, according to the association, falls under European law and the principle of exhaustion of rights.
Behind this action, UFC-Que Choisir hopes that the European Union will take a stand to guarantee equal treatment between physical games, whose resale is permitted, and digital games, currently subject to a resale ban on Steam.
The infringement proceedings are based on Article 258 of the Treaty on the Functioning of the European Union (TFEU), with the Commission ultimately deciding whether or not to bring an infringement action before the Court of Justice of the European Union (CJEU). Infringement proceedings are merely declaratory, and the CJEU cannot overturn the decision of the French Court of Cassation. Should both the Commission and the CJEU rule in favor of the infringement, France will be required to take the necessary measures to enforce the Court’s judgment, or face a financial penalty.
Video games and virtual currencies – other potentially deceptive business practices
The legal action against the Steam platform is part of a broader struggle waged by numerous European consumer protection associations against the video game industry.
On September 12, 2024, BEUC – the European Consumer Organisation – and 22 of its member organizations from 17 countries filed a complaint with the European Commission and the Consumer Protection Network (CPC-Network) denouncing several misleading practices by major video game publishers, including Activision Blizzard, Electronic Arts, Epic Games, Mojang Studios, Roblox Corporation, Supercell, and Ubisoft. These companies, which market particularly popular games – Fortnite Eat Sports, Minecraft, Clash of Clans, etc. – are accused of using unfair business practices and abusive terms to govern the use of virtual currency in connection with premium games.
Specifically targeted are clauses that waive consumer rights, particularly those allowing operators to unilaterally modify or remove game features, as well as those limiting consumers’ statutory rights. The complaint also denounces unfair terms related to the personalization of the consumer gaming experience.
Semji, a marketing professional, organized a major event called “AI Scope” on April 8th and 9th, 2025, dedicated to addressing the topic of AI for marketing professionals. Seventeen online conferences were viewed by over five thousand participants eager to exchange ideas on innovations and strategies for effectively integrating AI into their processes and activities:
- How PAP used AI in its content strategy to boost performance
- AI & Video Creation: Productivity, Creativity… and Responsibility!
- From descriptive to predictive: AI at the service of marketing insights
Reinventing marketing in the age of AI: innovative strategies and use cases to maximize the impact of decision-makers
Invited to address the complex issue of AI, Chomiac de Sas, a specialist in digital law, and Betty Jeulin, an intellectual property lawyer, answered questions related to artificial intelligence law in just under an hour.
Our presentation focused on providing pragmatic answers to the legal questions and challenges raised by marketing professionals’ use of artificial intelligence tools.
Find the conference proceedings and our previous presentations on this topic online:
“AI and legal challenges: navigating between innovation and compliance”
In line with the digitization of society and services, the proliferation of tools using generative AI is disrupting established practices, requiring companies to be vigilant regarding the associated legal issues, particularly in marketing and advertising.
This presentation will cover not only the legal framework applicable to AI in marketing, but also identify and raise awareness of legal risks and best practices for ensuring optimal business security: access conditions, data protection, intellectual property rights, algorithmic transparency, contracts and clauses specific to AI, etc.
Legal risks in the use of AI: A Roadmap please
In short, professionals using AI tools may face legal risks in three forms: civil and judicial risks, criminal risks, and administrative risks, including non-compliance with applicable standards.
Within this threefold spectrum of liability, marketing agencies must consider the implications associated with the data stored in AI tools, the cognitive biases and hallucinations to which these tools are inevitably subject, the conditions for using the generated results, and the complex issue of data collected and reused by AI models.
Use of an AI tool: Contractual framework for missions
In the absence of a comprehensive and fully applicable legal or regulatory framework, the use of artificial intelligence tools by the public, whether professionals or consumers, is primarily governed by contract law.
It is up to the general terms and conditions of AI tools to define their obligations and responsibilities towards their users. Therefore, it is crucial for agencies to be particularly vigilant in analyzing these terms and conditions, and even, if necessary, to require contractual negotiation through a specific contract tailored to the company’s needs.
We are seeing more important clauses and objectives for agencies and their clients, particularly regarding complete information on the operation and processes associated with an artificial intelligence tool, the data processing involved (including personal data, business data, and trade secrets), and the guarantees concerning intellectual property and the confidentiality of operations performed and content generated.
Leveraging AI tools: the legal KYC of service providers
Following on from the points presented earlier, it is now essential for companies to establish procedures for analyzing and selecting the tools they wish to use or implement in their operations.
Among the relevant considerations are the legal entity that owns the solution: a startup with a client-facing solution or a company dedicated to improving the language model?
The same applies to the tools themselves: which LLMs should be prioritized and based on what criteria? Which databases must be submitted and why? What user journey should be prioritized given the company’s needs, and what about subcontractors and database mapping?
Finally, what guarantees are offered? Are these promotional and marketing statements associated with the offering, contractual obligations, compliance with ISO standards, or more generally, compliance with national, EU, and European regulations?
How, in reality, can we control the data transmitted to an AI tool?
The answer to this question is neither obvious nor simple. Experience shows that obtaining professional guarantees in the use of digital tools requires a multiplication of procedures and verifications to control and mitigate any potentially harmful risks to the company.
Requests for information on how the tools work, along with requests for technical and legal guarantees, are essential and can be obtained through technical and legal audits.
These due diligence measures, documented by professionals, are designed to prevent the agency from being held liable to its clients in the event of difficulties, particularly for negligence or a lack of due diligence expected of a professional in this sector.
AI & Compliance: GDPR, Cybersecurity & AI Act: So what?
In a professional environment characterized by an increasing number of applicable standards, it seems appropriate to view these regulations as a competitive opportunity for marketing agencies.
Indeed, compliance with standards regarding personal data, cybersecurity, the AI Act, and other elements enhances the experience, professionalism, and reliability of the companies involved. Bound by similar standards, industry players—clients and service providers alike—are sensitive to these obligations and will benefit from agencies that can expedite these processes.
Find the summary of our presentation on leveraging compliance with digital standards at the Documation forum.
Digital law specialist: Legally controlling the use of AI
It appears that professional marketing agencies have every reason to understand and master the content of artificial intelligence tool offerings by enlisting the help of qualified professionals to guide them in their choices.
Alongside technical experts, the advice and support of lawyers specializing in digital law or intellectual property can prove to be a major asset:
Data protection: Lawyers can help navigate the regulatory framework for personal data, particularly the GDPR, and ensure that the use of data by AI tools complies with applicable laws. Beyond the legal obligation, respecting customer data used in marketing campaigns is a valuable asset for the company.
Intellectual Property: As discussed in our previous presentations, the intellectual property rights of AI-generated content are not yet the subject of a clear consensus. Legal doctrine and initial global case law tend to favor the absence of intellectual property rights for such content, unless the user demonstrates an additional and personalized creative process.
It should be noted that the use of the prompt, particularly the wording of requests, does not currently appear to meet the originality criterion, which is mandatory to establish the existence of a work protected under the Intellectual Property Code.
Analyzing the terms and conditions, along with a preliminary strategy developed with legal counsel, ensures that AI-generated creations do not infringe existing intellectual property rights and that the rights to these creations are clearly defined.
Contracts and Partnerships: Considered on several occasions, marketing agencies can, and perhaps should, negotiate dedicated contracts with AI tool providers to clarify each party’s responsibilities in the event of a dispute.
Regulatory Compliance: Alongside these new tools, it is important to remember the existing legislation governing marketing agency services regarding online advertising, accurate and fair information, deceptive business practices, unfair competition, and counterfeiting.
The latest edition of the Documation Forum took place on March 19 and 20, 2025. This trade show for information management and document and business processes is the leading annual event that allows professionals to better understand the new technological challenges and regulatory developments in document management activities.
Alongside Eric Le Ven of Archimag, Nosing Doeuk of mc2i, Pierre Fuzeau of Groupe Serda Archimag, and Amélie Saïdi of Majorel France, Pierre-Xavier Chomiac of Sas spoke on the topic of corporate cybersecurity and related compliance obligations.
During this plenary session, the mastery of regulatory environments during document processing workflows in customer relationship management activities was discussed.
Find all our publications related to corporate cybersecurity
Cybersecurity, GDPR & compliance useful for businesses
The second plenary session of the day, held on March 19th and entitled “Mastering Regulatory Complexity and Transforming Constraints into Competitive Advantages,” focused on all regulations and compliance requirements applicable to companies regarding data and cybersecurity.
Its objective was to explore the opportunities for transformation and competitiveness associated with these diverse compliance requirements. Indeed, the regulatory constraints on information management and document flow activities can represent an opportunity, provided that:
- Systematically adopts best practices in data security and protection.
- Understands and masters complex regulatory environments.
Digital law & hierarchy of standards
LCompanies can no longer ignore their compliance obligations, even though their origin and implementation conditions may vary:
- European laws and directives establishing a broad framework of principles to be transposed and applied;
- Regulations imposing direct obligations on states;
- More precise and practical private standards and frameworks facilitating compliance, although their application is not legally binding.
It is clear that some requirements overlap, and sometimes even contradict each other, creating redundancy that complicates the adoption of best practices.
Digital companies and standards
Cybersecurity is a major challenge for French organizations today, which are faced with a veritable regulatory maze. The list of standards applicable to digital activities is indeed staggering:
The Corporate Sustainability Reporting Directive (CSRD), mandatory from 2024 for large listed companies and certain SMEs, requires detailed reporting of environmental, social, and governance (ESG) impacts.
The Omnibus Directive, harmonizing consumer rights in the EU, imposes strict transparency rules in e-commerce, under penalty of heavy sanctions.
The General Data Protection Regulation (GDPR) ensures the protection of personal data within the European Union.
Electronic invoicing will be mandatory for all businesses in France from 2026 for business-to-business transactions.
NIS2 (Network and Information Systems Security Directive) requires critical infrastructure operators to strengthen their cybersecurity.
The Digital Markets Act (DMA) regulates large digital platforms (“gatekeepers”) and imposes restrictions on anti-competitive practices.
The Digital Services Act (DSA) regulates online content and imposes increased obligations on platforms to limit misinformation and illegal content.
The AI Act is part of the European regulations governing the use of artificial intelligence systems, with specific obligations depending on the risk level of AI applications.
The Data Act regulates access to and sharing of industrial data between businesses, individuals, and public institutions.
The Cyber Resilience Act sets out enhanced security requirements for digital products.
The Data Governance Act is a European regulation that promotes a framework for the ethical and secure management of shared data, particularly in the public sector.
eIDAS v2 introduces a European digital wallet to facilitate electronic identification and authentication in EU Member States.
MiCA (Markets in Crypto-Assets) establishes the European framework for regulating cryptocurrencies, introducing obligations for platforms, token issuers, and service providers.
The Digital Footprint Regulation requires companies to measure and reduce their environmental impact related to the use of digital technologies.
The Digital Due Diligence Directive proposes obligations for companies to identify and mitigate human rights and environmental risks in their digital activities.
Compliance with standards: a competitive advantage
However, standardization is a strategic asset: it facilitates access to certain markets and strengthens a company’s credibility. Adopting a standard can be seen as a long-term investment, a guarantee of quality and security for customers and partners.
Compliance also varies across cultures: in France, the approach is often perceived as restrictive, while other countries integrate it more naturally into their business strategy.
Understanding these differences and adapting one’s approach is essential for any organization wishing to operate in an international environment.
Faced with this evolving environment, constant regulatory monitoring and rapid adaptation are the keys to effective cybersecurity that meets current requirements.
Compliance with laws and risk of penalties
Compliance is not just a matter of obligation, but also of risk management. Anticipating legal changes, understanding the implications of new regulations, and limiting professional liability are all reasons to call upon experts.
Controls and sanctions are a reality, as evidenced by the recent CNIL sanction against Orange.
Why do such loopholes still exist? Because achieving compliance is a balancing act between cost, benefits, and risks. Companies juggle sometimes inconsistent obligations and control mechanisms that could be improved. Some may even try to circumvent requirements deemed absurd for the company’s development.
In this context, support from a lawyer or a specialized firm is crucial. Compliance is not just a matter of obligation, but also of risk management. Anticipating legal changes, understanding the implications of new regulations, and limiting professional liability are all reasons to call upon legal and technical experts.
On March 13th, Mr. Chomiac de Sas spoke at the Bordeaux Bar School (EDA Aliénor) to offer lawyers a training session dedicated to artificial intelligence and its integration within law firms.
We thank all the colleagues who attended this training and for the very interesting discussions that these topics generated.
The firm frequently works with companies and universities to train professionals and lawyers on topics related to digital law: communication and advertising, social media, video games and esports, GDPR and personal data protection, cybersecurity, etc.
The promises of artificial intelligence: lawyers & legal professions
Dependent on technological and IT tools, lawyers today operate in a society profoundly marked by continuous technological evolution:
Digitalization of formalities with court registries, online accounting management solutions, metaverses, electronic signatures, social networks, professional clouds, blockchain & cryptocurrencies, etc.
In this context, the democratization of access to artificial intelligence tools – machine learning/deep learning – and their chatbot interfaces (“LLM”) have transformed the approach to many of our activities.
The activities of lawyers in the face of artificial intelligence
Whether in advisory, litigation, audit, or compliance matters, artificial intelligence tools appear to offer significant advantages for lawyers: advanced technical research tools, support functions for legal research and consultation, drafting of pleadings, and assistance with related and ancillary tasks.
Their widespread use necessitates future consideration of changes in law firm business models in light of client demands and expectations regarding the increased value of research services.
The legal issues associated with AI in the legal profession
The challenges associated with training artificial intelligence tools using data processed by law firms also raise concerns, while the issues of responsibility regarding the future of transmitted data and the consolidation of databases demand particular rigor and vigilance.
Finally, the use of artificial intelligence tools by law firms raises the question of their notification, explanation, and even explicit authorization from their clients, depending on the needs and risks associated with the cases in question.
As an extension of the use of artificial intelligence tools in the legal field, their use by judges in litigation and dispute resolution also raises significant questions, particularly concerning statistical justice or predictive justice.
Artificial intelligence and legal ethics
Given all these issues, the use of artificial intelligence tools raises several points regarding the ethical rules governing the practice of law:
Professional secrecy and the challenges of data and work confidentiality, the methods of pseudonymization/anonymization and their limitations, and more generally, the choice of artificial intelligence tools.
Essential principles, including questions of loyalty, competence, and prudence in verifying content, and attention to the risks of cognitive biases and hallucinations in AI processing requests.
Related and ancillary activities, which have expanded in recent decades, particularly since 2015, have allowed lawyers to offer their commercial services through software or digital solutions that may include algorithmic or generative artificial intelligence tools.
Advertising. Governed by several legal, regulatory, and ethical standards, lawyer communication and advertising require adherence to essential principles, honest and fair information, and respect for professional secrecy.
Subject to these conditions, the use of artificial intelligence tools to support marketing strategies appears very promising: accelerating content production, defining…
PCS Avocat regularly advises on issues related to lawyer communication and the ethical challenges they raise. Find all our training courses here.
For more detailed information on AI marketing, see our dedicated section.
Presentation
On February 18, 2024, the Entrepreneurial Bar Association, a program dedicated to supporting lawyers in their professional development, is offering a new training course focused on AI tools and marketing strategies for law firms, while respecting the profession’s ethical principles.
This training, led by Charlotte Karila Vaillant – Signe Distinctif & Pierre Xavier Chomiac de Sas, builds upon previous training sessions on these topics held during Campus 2024 and within the framework of the AI & Ethics Commission of the Paris Bar Association.
A specialist in digital law, Mr. Chomiac de Sas frequently contributes to numerous publications and presentations on the evolution of advertising practices and the digital presence of lawyers, while ensuring compliance with legal and ethical provisions, as outlined in the various online guides of the National Bar Council and the Paris Bar Association.
Find details of his previous training courses.
The evolution of lawyers’ communication and advertising
Lawyers’ communication and advertising have undergone a major transformation with the progressive digitization of society on the one hand, and their increased autonomy since the liberalization of legal practices on the other. Long governed by strict regulations, these practices have gradually evolved, particularly since 2015, now allowing lawyers to showcase their expertise across various digital platforms while adhering to ethical obligations.
The National Bar Council and the Paris Bar Association have provided clarification through several helpful documents outlining the parameters of lawyer communication and the various forms it can take.
Digital communication strategies for lawyers
A lawyer’s communication can take various and complementary forms designed to promote their firm, develop a professional network, offer high-quality legal information, or more generally, contribute to current legal and societal affairs.
A well-optimized website is now an essential asset for any lawyer wishing to increase their visibility. Blogs, professional social networks like LinkedIn, and newsletters help build trust with clients.
The challenge remains to adopt a consistent and clear communication strategy that meets the needs of lawyers.
The contribution of AI and innovative tools to legal marketing
Artificial intelligence can revolutionize legal marketing by facilitating content creation and optimizing advertising campaigns. Lawyers can leverage several types of tools:
- Assisted content generation: Tools like ChatGPT or Jasper AI allow for writing SEO-optimized articles and engaging social media posts.
- SEO analysis and optimization: Semrush and Ahrefs are relevant for improving a website’s ranking.
- Marketing automation: Mailchimp and HubSpot facilitate sending personalized emails and tracking leads.
- Social media management: Buffer and Hootsuite help schedule posts and analyze their impact.
Tools using AI thus represent a lever for growth and accelerating business activities, provided that these activities remain controlled and implemented in compliance with the rules governing the legal profession.
AI and Ethics: What Are the Limits?
The use of AI in legal communication is subject to all applicable legal and ethical rules.
As outlined in the essential principles of Articles 1 and 10 of the National Internal Regulations (RIN), specifically dedicated to lawyer communication, all advertising must provide truthful and accurate information, in addition to the obligation to identify the author of the communication at all times.
Following on from Article 2 of the RIN, lawyers must, in the use of any digital tool, especially in advertising, ensure compliance with professional secrecy.
AI must not replace human analysis or the lawyer’s expertise. Rigorous content control is essential to guarantee compliance with ethical and legal rules.
The risks and pitfalls of AI in lawyer marketing
While AI offers exciting possibilities for communication and advertising, it also presents risks for all professionals, including those in the legal field:
- Content reliability: AI-generated texts can contain errors or inaccuracies that compromise a lawyer’s credibility.
- Distortion of messages: AI can simplify or alter legal arguments, potentially misleading the reader.
- Breach of professional secrecy: Entrusting sensitive information to AI exposes lawyers to the risk of uncontrolled disclosure.
- Standardization and impoverishment of content: Excessive use of AI can undermine the originality and added value of legal publications.
- Risk associated with lawyer influencers: A digital presence based solely on virality and advertising can damage the profession’s image.
This training will enable you to leverage artificial intelligence technologies to improve your communication and marketing, while strictly adhering to the profession’s ethical guidelines.
PCS Avocat has extensive expertise in guiding lawyers’ communications and developing effective marketing strategies.
Register now to master AI and optimize your marketing strategy in full compliance!
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.
On January 27, 2025, Pierre-Xavier Chomiac de Sas, Esq., participated alongside Amaury Sonet in a training session dedicated to the legal framework for legaltech companies, particularly those founded by lawyers.
Given their regulated status, the legal framework governing the related and ancillary commercial activities of lawyer-startups raises several points of concern with regard to applicable legal and ethical provisions.
Organized by the Paris Bar Association’s Incubator (Paris Bar Association) at the premises of their partner Kanbios, the three incubated projects of the 2025 season were present and fully participated in the discussions, sharing their thoughts and questions on this crucial topic.
Find our previous presentations on this subject.
Pierre Xavier Chomiac was pleased to speak again at Panthéon University during a professional event dedicated to the digital sector.
The annual conference of the Center for Legal and Economic Studies of Digital Technology (CEJEN), under the direction of Professors Jérôme Passa and Jérôme Huet, devoted its 2025 edition to the theme of digital contracts. Entitled “Adapting Businesses to the New Economy: Digital Supply Contracts,” the conference took place on January 24, 2025, at the Panthéon Center.
PCS Avocat’s presentation focused on the legal issues related to internet access and its contractualization through internet access provision contracts.
Digital Law Symposium: Contracts for the Supply of Digital Resources
The morning session was dedicated to the topic of digital services contracts.
Introduced by Stéphane Mouy, Senior EKYC and Data Protection Consultant, the issue of digital customer identification led to discussions on several legal issues, particularly regarding personal data protection (GDPR), anti-money laundering and counter-terrorist financing (AML/CFT), and compliance with various regulatory obligations depending on the types of services and products used by internet users: professional traceability, electronic identification, and professional liability, etc.
Anne-Danis Fatôme, Professor at Paris Nanterre University, focused on presenting the legal framework of email, which is complicated by the diversity of its forms and uses by its users.
Caroline Laverdet, Attorney and Doctor of Law specializing in metaverse law, offered her expertise on digital services contracts within the metaverse.
The afternoon session of the conference focused on digital content supply contracts, with additional presentations on the following topics:
- Social networks and copyright by Charlotte Bruguière (Lawyer at the Lyon Bar)
- Database provision by Cédric Manara (Head of Copyrights, Google)
- Transfer of personal data by Thibault Douville (Director of the Master’s program in Digital Law, Caen)
- Data acquisition and processing (Perrine Sterne, Legal Counsel at Pigment)
Access to the internet: a near-fundamental right
At a time when public authorities are enshrining digital identity as a means to guarantee the full application of rights both online and offline, it seems worthwhile to examine its essential prerequisite: access to the internet.
Access to the internet, as a massive contemporary communication tool, is considered a fundamental right, an extension of the rights to freedom of expression and communication. Presented as a “fundamental right in development,” France has distinguished itself by adopting laws guaranteeing non-discriminatory access and providing support to the most vulnerable to maintain their connection.
Internet access: a right governing physical infrastructure and a virtual space
This access to the internet is actually based on a dual physical and virtual dimension:
- The physical dimension concerns the technical infrastructure of telecommunications, the legal framework of which depends on a variety of administrative and legal standards with a strong international character: telecommunications, the law of the sea and submarine cables, space law for satellites, environmental law, etc.
- The virtual dimension refers to the identification and regulation of practices within a new, dematerialized space.
As a consequence of this dense and complex legal framework, a large number of public entities are competent to monitor and even penalize the conditions of access to the internet: the Regulatory Authority for Electronic Communications, Postal Services and Press Distribution, the Ministry of the Economy, Finance and Industrial and Digital Sovereignty, the Defender of Rights, the National Commission for Information Technology and Civil Liberties (CNIL), the Council of State, and the National Agency for Territorial Cohesion (ANCT).
Internet access contracts : legal frame
In the context presented by the various stakeholders, understanding internet access contracts also involves a distribution of specific obligations for both providers and consumers.
Providers’ obligations in internet access contracts go far beyond simply providing a connection. They must guarantee the quality and continuity of service, clearly inform consumers about subscription and termination terms, and ensure compliance with regulatory requirements, particularly regarding the protection of personal data.
Internet access, while essentially intangible, is not simply a physical good, but a continuous data transmission service based on long-term performance commitments. In fact, an internet access contract is often perceived as a contract for electronic communications services rather than the sale of goods. This means that providers must ensure a regular, uninterrupted service with contractually defined quality levels.
In addition to network connectivity, contracts may include ancillary services, such as equipment rental (modems, routers) or the provision of digital content like movies or music. These services must be explicitly mentioned and differentiated in the terms and conditions to avoid any confusion. Providers must ensure that these ancillary elements are clearly distinct from the core commitments related to providing internet access services, while guaranteeing complete transparency regarding their management.
In France, these contracts are regulated by the Regulatory Authority for Electronic Communications and Posts (ARCEP), which imposes quality and continuity of service obligations on providers. These requirements ensure that consumers benefit from a stable and reliable connection, with precise technical criteria for speed and availability.
Internet access contracts: Judicial oversight of unfair terms
Case law has frequently examined the clauses in internet access contracts, declaring some of them abusive.
In a decision of the Court of Justice of the European Union (CJEU) of September 2, 2021 (C-34/20 – Telekom Deutschland, C-5/20 – Bundesverband der Verbraucherzentralen und Verbraucherverbände, and C-854/19), commercial practices based on zero tariffs were deemed unlawful.
Regarding the statute of limitations, the Civil Chamber of the Court of Cassation (Civ. 1re, March 13, 2024, no. 22-12.345) held that “The statute of limitations for an action cannot be contractually reduced to less than one year from the day on which the holder of the right knew or should have known the facts enabling them to exercise it (French Civil Code, art. 2254, para. 1).” The clause reducing the applicable limitation period below this limit, in favor of the supplier, must be deemed unwritten.
Strict liability regime for providers of access to electronic communications services
Historically, case law has relied on general legal principles to impose a performance obligation on internet service providers.
Using Articles 1147 and 1148, now Articles 1231-1 and 1218 of the French Civil Code, several decisions have reaffirmed this performance obligation, often by classifying clauses limiting or excluding liability as abusive (French Supreme Court, First Civil Chamber, November 8, 2007; French Supreme Court, First Civil Chamber, November 19, 2009), following earlier substantive decisions (Paris Regional Court, April 5, 2005; Versailles Court of Appeal, September 15, 2005; Cherbourg District Court, July 12, 2007).
More recently, in a decision dated March 13, 2024, a new legal basis was invoked: Article 15 of the French Law on Confidence in the Digital Economy (LCEN), which concerns contracts concluded electronically.
“It follows from Articles 14, paragraphs 1 and 2, and 15, I, of Law No. 2004-575 of 21 June 2004 on confidence in the digital economy, that a provider of access to an electronic communications service is fully liable to its customer for the proper performance of the obligations arising from the contract and that it can only be relieved of all or part of its liability by providing proof that the non-performance or poor performance of the contract is attributable either to its customer, or to the unforeseeable and insurmountable act of a third party unrelated to the provision of the services provided for in the contract, or to a case of force majeure. The provisions of Article 15, I, cited above, being mandatory insofar as they concern contracts concluded between providers of access to electronic communications services and their customers, contractual freedom does not permit any derogation from them (Civ. 1re, March 13, 2024, no. 22-12.345).
The Court of Cassation follows the recommendation of the Commission on Unfair Terms (BOCCRF July 31, 2007), considering the provision of access by the professional to be an activity devoid of any risk and subject to an obligation of result.
Article 15 of the LCEN: Obligation of result and public policy
As a reminder, Law No. 2004-575 of June 21, 2004, on confidence in the digital economy (hereinafter the “LCEN”), transposes Directive 2000/31/EC of the European Parliament and of the Council of June 8, 2000, on certain legal aspects of information society services.
This law essentially aims to strengthen consumer confidence in order to boost electronic commerce, which is intended, in the medium term, to replace all other methods of distance selling.
Article 15, adopted on June 21, 2004, introduces a strict liability regime for professionals engaged in e-commerce.
These professionals are therefore subject to an obligation of result, and their liability can be invoked without the customer having to prove that they committed any fault in the performance of the services. In the judgments discussed, the Court of Cassation ruled, for the first time to our knowledge, that this text is a matter of public policy. Once a law concerns public policy, it cannot be derogated from by private agreements (Civil Code, art. 6).
On this point, it stipulates that:
“I. – Any natural or legal person carrying out the activity defined in the first paragraph of Article 14 [person who offers or provides goods or services remotely and electronically] is fully liable to the buyer for the proper performance of the obligations arising from the contract, whether these obligations are to be performed by that person or by other service providers, without prejudice to their right of recourse against the latter.
However, they may be relieved of all or part of their liability by proving that the non-performance or improper performance of the contract is attributable either to the buyer, or to an unforeseeable and insurmountable event caused by a third party unrelated to the provision of the services stipulated in the contract, or to a case of force majeure.”
Doctrinal critique of the application of Article 15 of the LCEN: conformity of the transposition
Article 15 of the LCEN (Law on Confidence in the Digital Economy) appears to comply with Directive 2000/31/EC, although it introduces additional obligations for e-commerce professionals, notably:
Regarding the liability of service providers, Article 15 proposes strict liability for professionals engaged in e-commerce activities, whereas the Directive limited the liability of hosting providers and technical intermediaries.
Monitoring obligation: Instead of prohibiting a general monitoring obligation, the LCEN proposes increased liability for professionals.
Motivated by the desire to strengthen consumer confidence and ensure the proper performance of contracts, these provisions could be perceived as an over-implementation of the Directive that exceeds the minimum requirements set forth, making the obligations of Article 15 excessive or unnecessarily restrictive.
The CJEU has confirmed in several judgments (Scarlet Extended, C-70/10, and SABAM, C-360/10) that States can impose specific surveillance obligations, provided that they respect the principles of proportionality and do not unduly hinder fundamental rights (freedom of expression, protection of personal data).
Over-implementation of European directives: procedures and sanctions
Continuing the scholarly analysis of these elements, the proposed over-implementation could pose a problem if it disproportionately hinders the free movement of goods or services or the internal market (C-142/05, Mickelsson and Roos) or if it contradicts the directive’s general objective of harmonization (C-58/08, “Vodafone”). To date, however, Article 15 of the LCEN (Law on Confidence in the Digital Economy) in its current wording has not been declared incompatible with the directive.
Hypothetically, a national court or the CJEU (Court of Justice of the European Union) could annul the over-implemented measure or limit its application. As a reminder, directives impose an obligation on Member States to implement them while leaving them free to choose the means by which they comply, with the measures adopted being communicated to the European Commission.
In the event of failure or non-compliance with these formalities, Article 258 of the Treaty on the Functioning of the European Union (“TFEU”) establishes the general infringement procedure against Member States which have failed to fulfill their obligations (formal notice, referral to the CJEU or even financial sanctions Art. 260)
In early 2025, the podcast “Derrière la Robe” (Behind the Robe) from the Paris Bar Association featured a session dedicated to artificial intelligence tools, inviting Pierre-Xavier Chomiac de Sas and Eric le Quellenec, specialists in digital law, to discuss the topic.
Listen to the full episode at the following link:
Behind the Robe: Podcast of the Paris Bar
An initiative of the Paris Bar Association, this podcast is aimed at lawyers, legal professionals, law students, digital professionals, and anyone interested in the impact of artificial intelligence on the justice system and the legal profession.
Hosted by Héléna Christidis, a lawyer at the Paris Bar and a member of the Bar Council, the first episodes released shed light on various issues affecting the legal profession:
- The Lawyer in the Media Arena: At a time when legal cases occupy a central place in the media and on social networks, Mathieu Delahousse, senior reporter and journalist specializing in legal affairs, and Sophie Obadia, criminal defense lawyer at the Paris Bar and former Secretary of the Conference, discuss the essential principles of the legal and journalistic professions, the roles they play in public debate, and the new challenges of this omnipresent media coverage.
- Women Criminal Defense Lawyers: Between Passion and Challenges: In this episode, Vanessa Bousardo, Vice-President of the Paris Bar, and Jacqueline Laffont, a lawyer at the Paris Bar, speak candidly about their experiences as women criminal defense lawyers. They share their passion, their commitment to their profession, and the challenges they have faced in this area of law, which is still too often reserved for men.
“This program unveils the human and moral complexity of the lawyer, beyond the robe, and offers you an exclusive look at exceptional guests, lawyers or experts sharing their visions, knowledge and experiences.”
Artificial intelligence tools in law firms
The first episode, broadcast in early 2025, focused on the major technological shift in societies over the past few years: the democratization of artificial intelligence (AI) systems.
The informal discussions between the three speakers highlighted the evolution and contemporary differences in AI systems, notably emphasizing the distinction between generative AI and general AI.
Through several examples of operational solutions across various economic sectors, artificial intelligence underscored the transformation of certain ways lawyers work and structure their added value, forcing the profession to rethink its methods, tools, and client relationships.
This naturally led to the issues of responsibility, confidentiality, and, more generally, professional ethics raised by the use of AI systems in the legal field, particularly in regulated legal professions.
Lawyers are called upon to develop new skills to remain relevant in a rapidly changing environment. This can manifest itself in very broad ways, for example, in marketing and communication strategy. For more information on these topics, see our training courses and presentations specifically dedicated to them.
IA Marketing & enjeux juridique – Avril 2025
Campus Avocat : Intelligence artificielle & marketing d’avocats – Novembre 2024