Second presentation by the law firm PCS Avocat at the Gaming Campus (Lyon) on the topics of video games and esports.
On October 2nd, the first seminar focused on the important issue of esports players and the protection of their safety and health.
On October 4th, Pierre Xavier Chomiac de Sas then presented the legal issues and challenges associated with the ownership of video games and their in-game content.
This training is part of the growing conflict between publishers and players regarding the true nature of the rights granted in the consumption of video games. This training also resonates with the recent petition launched by a group of players against Ubisoft, denouncing the shutdown of the servers for the video game title “The Crew” [our presentation of the topic].
Video game ownership: a complex system according to case law
Numerous national and European decisions in recent years have clarified the legal framework for software and digital works, as well as the conditions of access for users and consumers.
The unique status of video games, defined by case law as complex works, involves navigating between these different legal regimes. This has the consequence of complicating, particularly for players, the actual rights associated with the video games they consume.
Video game ownership: Purchase or license
As a continuation of this discussion, the issue of selling and reselling games, in-game items, and other elements related to their consumption continues to frustrate players, who are convinced they can freely resell purchased or earned content.
It is important to note a growing confusion regarding the true nature of the legal relationship between publishers and users concerning access to and use of their video games.
This confusion stems primarily from the terminology used in commercial offers associated with the virtual items offered. Presented overwhelmingly as “purchases” of items or “currency,” contractual documents consistently and explicitly refer to usage licenses.
Furthermore, publishers grant themselves the broadest possible prerogatives regarding access to and use of their property by the widest possible range of users and players. In the 2000s, the video game metaverse “Second Life” was the subject of significant litigation related to its operation.
He was accused of fraudulent representation within the video game, firstly regarding the existence of real property rights – real estate[1] – and secondly regarding financial transactions related to the valuation of certain objects[2].
Video game ownership: the risks publishers face regarding gambling
Beyond the associated financial profitability, the ownership of virtual goods is a major issue for publishers, given the consequences of the alienability of the products and services offered and the potential legal reclassification associated with the ownership of these goods.
The ability of players to buy and resell virtual goods obtained within video games, potentially realizing a capital gain, would dangerously bring video games closer to being classified as gambling and would trigger a much stricter regulatory framework for publishers: combating addiction, moderating gameplay to address player abuse, a possible approval process for all games by the French National Gaming Authority (ANJ), and even, in some cases, enforcement of the ban on gambling for minors.
Video game ownership: increasing protection for publishers and studios
Frequently, many video game studios prosecute all creations offered by fans, particularly those providing emulators of their games or alternative versions of video game titles – fan-made games – which publishers consider to be pure acts of copyright infringement.
Nintendo has particularly distinguished itself in recent years in its fight against all counterfeit content accessible from online platforms.
See our dedicated summary for more information on these topics.
[1] Evans v. Linden Research Inc., C.V. 10-1679 (E.D. Penn.) (15 avril 2010).
[2] Bragg v. Linden Research, Inc., C.V. 06-4925 (3 octobre 2006), 487 F. Supp. 2d 593 (E.D.Penn. 2007).
On October 2, 2024, Ms. Chomiac de Sas participated in the Gaming Campus immersion week for students and future professionals in the video game and communications sectors.
PCS Avocat led a seminar dedicated to the health of esports players. Reviewing the general legal framework applicable to esports law, the training focused on a practical presentation of all the stakeholders likely to be involved in or influence players’ working conditions, in order to guarantee them the best possible health protection.
A form of co-regulation is emerging to effectively address this recurring issue, given the tragedies the sector regularly faces.
Health and safety of esports players: worker protection
Any structured professional activity generates risks for the person performing it. A continuous challenge in labor law, the best protection of employees in terms of their working conditions, their physical and mental health, is confronted with the specificities of the esports sector, at the crossroads between several professions and specific issues: video game publishers and studios, clubs and players, event organizers, online broadcasters, etc.
Esports players: underage children, particularly vulnerable and protected
While the impact of child labor is now largely addressed by the Labor Code, the effects of esports on players are less well understood. They therefore deserve special attention.
Read our study on this topic, particularly concerning underage players.
A specialized legal publication is available in the LexisNexis Family Law journal, issue no. 7-8, July-August 2024.
The Ministry of National Education’s ÉduNum newsletters regularly summarize digital educational activities. They are produced by subject-matter experts from the Directorate for Digital Education, in collaboration with the General Inspectorate for Education, Sport and Research, and academic digital liaisons.
Issue #23, published in September 2024, focused on video games and their competitive dimension: esports. Exploring the world of video games and esports, the newsletter offered an overview of related professions and practices.
Interesting testimonials from professionals highlighted its educational value and its use in the field of education.
Video games & esports players: Data transfer and control
In this context, Mr. Chomiac de Sas was able to share his experience regarding industry practices. This provided an opportunity to highlight the risks to player safety and protection, particularly for professional esports players, but also for all gamers in general.
Video games have become true mass media, enabling users to exchange text, documents, voice messages, and link social media accounts with numerous internet users through their various functionalities. These practices raise the issue of digital data protection, especially for minors.
Esports Law and Professions Fact Sheets: A book for professionals
Faced with the critical lack of legal information regularly denounced by industry stakeholders, the law firm PCS Avocat has undertaken to produce a legal guide presenting the overall legal framework applicable to esports.
Intended for industry professionals, the book details all the legal issues and challenges associated with each of the stakeholders within the ecosystem:
- Video game publishers and studios offering their games as a platform for competition;
- Clubs and players whose services and obligations may conflict with labor law;
- Esports competition organizers and the administrative framework of the events they are required to organize;
- Competition broadcasters and their financial ties with online streaming platforms, the primary means of broadcasting competitions.
See the presentation of our book for more information..
In an article dedicated to influencers’ reactions and comments on TV shows and series, Me Chomiac de Sas was interviewed by Salomé Ferraris, who provided her expertise on the legality of these practices, particularly with regard to intellectual property.
Published on September 21, 2009, the BFM article, titled “‘Three Months to Get Married,’ ‘Four Weddings and a Honeymoon’… TV Show Commentary is a Hit on Twitch (But Irritates the Networks),” outlines the recent practices of the platform/social network featuring influencers reacting to and commenting on audiovisual content found online or on television channels.
Read the full BFM article.
Reacts video: Compare your emotions to those of other internet users
For several years, influencers have been developing content based on sharing videos from the internet, television, or streaming platforms, which they then comment on or react to. A significant advantage for content creators is that such formats require little preparation beforehand and minimal editing and post-production afterward.
While very prevalent on YouTube in the 2000s for commenting on or reacting to other internet videos, its format has gradually evolved to focus on episodes of series or films. Fans film themselves watching series without actually showing the content, allowing viewers to compare their reactions with those of others.
On Twitch, many influencers frequently offer React content on their channels related to their personality and areas of expertise.
In terms of television content, Aminematue comments on shows like “Si on se rencontréait” (M6) and “Trois mois pour se marier,” OceaneAmsler “analyzes” the French show “Quatre mariages pour une lune de miel,” while the streamer Etoile reacts to episodes of “Questions pour un champion.”
During election periods, several influencer channels broadcast political debates, notably between Jean-Luc Mélenchon and Eric Zemmour (illegally) and Emmanuel Macron and Marine Le Pen (legally). Some influencers also offer reactions to their own content, several years later, like Antoine Daniel.
Twitch Reacts: Content that exposes the video being watched
Inspired by television, these “Reacts” on Twitch have evolved by integrating the audiovisual content being commented on directly into the video. In an authentic and spontaneous manner—essential criteria for influence on the platform—new and old content are thus dissected by influencers.
It’s striking how Twitch influencers tend to focus these React videos on older shows and series. Far from reflecting their community’s interest in the “Just Price” of the 1980s, the answer to these questionable editorial choices likely lies in the lens of intellectual property and copyright protection.
Indeed, rights holders, often audiovisual production companies, are less discerning or attentive to content that no longer holds economic appeal compared to new series or films currently airing.
Watch Parties. The Twitch platform, owned by Amazon since 2017, implemented a system in recent years allowing its influencers to legally comment on episodes of series and shows related to content from another Amazon Prime service. However, Twitch ended the service in April 2024 due to low viewership.
React Twitch: Without broadcasting rights, a copyright violation
Faced with the growing audiences of social media platforms like Twitch, TikTok, and Kickstarter, television channels and audiovisual production companies have gradually reacted to combat these new forms of content distribution.
Using the services of specialized companies, M6, Canal+, the French Football League, and rights holders have launched waves of notifications to Twitch to suspend and prosecute content that infringes copyright. As a hosting platform, Twitch almost always sides with the rights holders.
For influencers, copyright infringement related to this content has massive professional repercussions: they are exposed to civil and criminal penalties for counterfeiting and unfair competition, as well as disciplinary sanctions from the Twitch platform ranging from content removal to permanent bans from the social network. Months of work and editing can thus be spontaneously deleted without any recourse for the influencers.
React Twitch: a legal exception to copyright?
In defense of these practices, many influencers argue that they fall under legal exceptions to copyright law. As a reminder, Article L122-5 of the French Intellectual Property Code outlines a series of situations in which the use of a work does not require the prior authorization of its author, including:
Performances within the family circle. The law explicitly states that the author cannot prohibit “private and free performances carried out exclusively within a family circle” (Art. L. 122-5 1° CPI). This refers to an audience limited to relatives or close acquaintances. Members of associations, companies, or communities are not considered to constitute a family circle.
Analyses and short quotations. Quotations must be short and justified by their relevance to the work in which they are included. Translating the work in its entirety is prohibited. In addition to respecting the author’s moral rights, the law specifies that the quotation must be justified by its “critical, polemical, educational, scientific, or informational nature in relation to the work” in which it is incorporated. The author may not prohibit analyses either. These analyses, however, must comply with legal requirements. They must not consist of a simple summary of the work. Strict summaries that present a work at greater or lesser length are considered derivative works subject to copyright.
Humorous expression. The Intellectual Property Code also denies the author the right to prohibit “parody, pastiche, and caricature, taking into account the conventions of the genre” (Art. L. 122-5 4°). The legislator thus allows creations or people to be parodied or ridiculed through the misuse of a pre-existing work.
It must be acknowledged that, in this matter, none of the exceptions seem to fully apply to Twitch’s React videos. As reiterated in several articles and interviews by Mr. Chomiac de Sas, while it is possible to reuse another creator’s content, this is only possible if one has acquired the broadcasting rights. Otherwise, it constitutes copyright infringement.
Video Game React: A Justified Tolerance
The Twitch community has historically grown around video game content streamed by creators. Even today, hundreds of hours of live gaming streams and streamer reactions are published daily, covering everything from classic titles to the latest releases, in both traditional and esports formats.
Very few copyright disputes have been identified in this sector, with the exception of music rights cases pursued by SACEM in France. Almost all studios tolerate these practices, seeing them as powerful marketing and promotional tools. Partnerships between Twitch and publishers have helped secure content creation by Twitch influencers. This may explain why some influencers believe they are authorized to stream content without permission.
This policy is explained in particular by the clear separation existing between classic audiovisual content consumed passively and video games, which are interactive by nature, and whose viewing of content does not equate to a gaming experience for the player/consumer.
On September 10th, Maître Chomiac de Sas gave his latest presentation at the Bordeaux School of Lawyers (EDA Aliénor), focusing on video game law and its competitive sector: esports.
For more information on the legal issues related to esports, the book “Esports Law and Professions Fact Sheets” (Ellipses Collection) is now available for purchase on all online platforms.
Find all of the firm’s work on esports and video games.
Other training courses offered by EDA Bordeaux.
On September 10, 2024, Mr. Chomiac de Sas had the pleasure of speaking with the Bordeaux Young Bar Association, EDA Aliénor, during its 2024 training cycle on digital law. The training focused on the influencer and streaming sector and its legal framework, particularly contractual aspects.
Find the presentation of all our latest legal training courses:
September 10, 2024 – Video Game & Esports Law
June 7, 2024 – New Digital Tools for Lawyers
March 5, 2024 – Virtual Reality & Metaverse
Find all the training courses offered by the firm related to new technologies.
Other training courses offered by EDA Bordeaux.
Interview with Me Chomiac de Sas on the legality of “React” content, particularly on Twitch
Television networks and production companies are denouncing the illegal reuse of their content, thus exposing content creators to legal action.
“It’s only possible to reuse another creator’s content if you have acquired the broadcasting rights. Otherwise, it’s copyright infringement,” emphasizes Pierre-Xavier Chomiac de Sas, a lawyer specializing in digital law, to Tech&Co.
Streamers can face up to three years in prison and a €300,000 fine. “There are exceptions to copyright law, such as parody, short analysis, or quotation. But broadcasting an entire program, punctuated by a few comments with no added value, is not one of them,” he adds.
Retrouvez l’article dans son intégralité
🎮 Video Game Ownership: A Legal Issue for Players and Publishers 🎮
The opening of Gamescom is an opportunity to focus on the video game industry.
I had the pleasure of speaking with Pierre Trouvé about the legal issues surrounding video game ownership in connection with his article about the players’ fight against the shutdown of the servers for Ubisoft’s game “The Crew.”
The Le Monde article presents a European petition aimed at ending the destruction of video games, “Stop Destroying Videogames,” launched on July 31st by a group of players as part of a European citizens’ initiative.
Video games and ownership: a growing conflict between players and publishers
This initiative raises essential questions about the legal issues surrounding video game ownership: the “purchase” of a video game now seems to be a misnomer, as it is less about perpetual ownership of the game and more about a license to use it under the control of the video game studios.
Find the article integration
On June 6th, the Bordeaux School of Lawyers (EDA Aliénor) launched a new training program for young lawyers wishing to master the essential digital tools for their professional practice.
This program is part of a series of training courses dedicated to digital law, including the following courses scheduled for September 2024:
- March 2024: Metaverses, Virtual Reality Solutions and Their Legal Implications
- September 2024: Law of Influencers, Streamers, and Content Creators
- September 2024: Video Game and Esports Law
This training session, led by Pierre-Xavier Chomiac de Sas, explores the challenges of digitalization in society and for legal professionals, highlighting issues that are often overlooked or poorly understood, particularly regarding cybersecurity risks and the impressive opportunities offered by artificial intelligence solutions.
We would like to thank all the colleagues who attended this training session, which facilitated a particularly fruitful exchange and interaction.
Digital tools for legal professionals: cybersecurity and artificial intelligence
The digital revolution has transformed our society and inevitably impacts all legal professions. Highlighting technological advancements and their societal impact, PCS Avocat emphasized the digital transformation of law firms, supported by a variety of online tools affecting all legal sectors, from advisory to litigation activities:
- Digitalization of exchanges between lawyers and courts;
- Online legal databases for case law and legal scholarship;
- Creation of online platforms for administrative documents – creation, modification, and publication of corporate documents and business law matters;
Cybersecurity and Personal Data. Recent years have seen an explosion in the number of cyberattacks in various forms: (spear)phishing, ransomware, DDoS attacks, etc. These attacks affect individuals as well as companies and businesses. Law firms are thus affected both by indiscriminate attacks targeting the general population and by more specialized entities interested in the particularly sensitive data that law firms may retain in the course of advising their clients.
Law firms must also ensure strict compliance with the protection of the personal data of their clients and partners in accordance with the GDPR regulations.
Bound by professional secrecy, lawyers must exercise great vigilance and care in implementing appropriate and necessary protocols and procedures.
Artificial intelligence. Tools based on artificial intelligence technologies—algorithms or machine learning—appear incredibly promising for assisting and optimizing the work of lawyers.
Lawyer’s advertising & communication
Digital communication is a key driver of visibility for lawyers, enabling them to present and promote their firms’ activities. The training covered various topics related to freedom of communication as defined by recent European court decisions, the associated proportionality test, and evolving advertising regulations.
Lawyer & Communication: Applicable Ethical Rules
In matters of advertising, lawyers, like any individual or company, are bound by the applicable legal provisions:
- Rules relating to promotional practices and consumer protection, notably those set out in the Consumer Code;
- Rules concerning regulated advertising for specific products and services;
- Civil and criminal rules relating to editorial liability;
- Regulatory and legal provisions concerning data protection.
As a regulated profession, lawyers are also required to comply with a number of specific rules regarding their communications. These are set out in Article 10 of the National Internal Regulations.
In summary, lawyer communication is governed by a dual principle: identifying the author of the advertisement and providing truthful and honest information regarding its content. Prohibited statements are also outlined, reiterating many prohibitions already present in the legal provisions applicable to businesses.
The variety of lawyers’ online communication methods was analyzed through the study of different distribution channels:
- The lawyer’s website;
- Personalized solicitations offered to litigants or clients;
- Service offerings from lawyers’ commercial platforms;
- Integration into directories and referencing platforms, etc.;
- The use of social media.
Lawyers’ Use of Social Media: A Marketing Strategy
Social media platforms account for a significant portion of the digital content published and consumed in 2024. The diversity of social media platforms, their content, their audiences, and their algorithmic systems necessarily requires lawyers to carefully analyze their objectives in order to develop an effective communication strategy.
A number of concrete situations related to lawyers’ presence on social media were discussed. These situations raise interesting issues, particularly regarding intellectual property, the protection of professional secrecy, ensuring that content is published to guarantee the strict protection of clients’ interests, and showcasing legal expertise or information, notably through infographics or legal design.
“Influencer” Lawyers
The final part of the training focused on the emergence of colleagues on social media whose notoriety and influence allow them to benefit from the new status of “influencer lawyers.”
This new practice raises a major issue for the legal profession, whose practice necessarily entails strict adherence to the principle of independence and the prohibition of engaging in commercial activity: can a lawyer behave as a commercial influencer on social media?
PCS Avocat – Communication & Advertisement
PCS Avocat Conseil has been assisting professionals with issues related to communication and, more generally, digital law for several years, providing training on all these topics on a regular basis at various universities, businesses, and law schools.
This training allows you to acquire essential skills to navigate the digital world as a lawyer. Don’t hesitate to contact the firm for more information!
For any information or assistance requests, you can contact us via the contact form or at px@chomiacdesas.com.
For the third consecutive year, Mr. Chomiac de Sas was invited to speak at the ethics training sessions offered by ACE-JA, presenting the rules governing lawyer communication and advertising.
PCS Avocat was able to present the contemporary challenges facing the legal profession, particularly regarding the use of digital tools and the associated risks.
A presentation of digital communication methods—websites, social media, personalized solicitation, and related and ancillary commercial activities—was given, alerting colleagues to unethical practices within the profession.
Mr. Chomiac de Sas frequently speaks on topics related to ethical rules, specifically concerning lawyers’ online communication and advertising, including on social media.
Find all our training courses and guides on these topics.