The free market case for the “Stop Killing Games” movement.
A movement is growing in Europe about consumer protection in the video games industry. A citizen’s petition in the EU recently reached 1 million signatures, meaning that EU regulators will consider the issue. That petition has a simple message: stop killing games.
The issue at hand is that game studios have been selling games as “licenses” and then revoking those licenses without warning. While online multiplayer games have always had a problem with server shutdowns due to maintenance costs, developers are now tying even single-player games to online functionality.
For example, Ubisoft shut down the servers for The Crew (which at one point logged 12 million players), leaving all forms of the game (including the solo campaign mode) unplayable. This problem reflects a larger trend of games shifting from physical discs owned by consumers to online-only software licensed to users.
The petitioners argue that studios should provide some sort of “offramp” for buyers to enjoy their games individually, even when online support ends. The petition and problems in the industry deal with both single-player and multiplayer games.
Are these demands a call for fair consumer protection or deleterious regulations?
Games and Intellectual Property
To unpack this issue, we need to consider the economics of property rights. Economist Armen Alchian argued that there were three core attributes of ownership:
- The ability to use property.
- The ability to sell property.
- The ability to derive income from property.
When I was a kid, game owners had all three of these. If you bought a game, it came in a physical format. You could play it, sell it, or even rent it out (like Blockbuster or GameStop did). As games have transitioned away from physical discs, attributes 2 and 3 have disappeared.
What’s unique about the licensing model is that studios are now even limiting on attribute 1. Gamers were already upset by the slow death of the used-game market, but they’re even more unhappy with companies destroying their ability to play games they’ve paid for.
This is the fundamental difference between a product and a license. When you buy a product, you maintain a permanent ability to use the product. A license gives you limited or contingent access. The rallying cry of license opponents was recently echoed by Minecraft creator Markus Persson (also known as “Notch”):
Notch’s sentiment is not legally accurate. That is, you can still be charged for a crime for pirating games. But the deeper sentiment speaks to the fundamental issue. Game studios can treat products as mere licenses because governments have decided that the code belongs to the company, not the consumers.
Even though this movement is about games, the implications extend to the software industry in general. Increasingly, all kinds of programs are adopting license models. Products like Adobe’s Photoshop are no longer available for purchase, only through subscription. Stop paying, the software stops working. While Microsoft Office does still allow one-time purchases, they include license options, and one wonders how long before they make the transition to license-only.
Books are another example. When you buy a physical copy, you can generally do what you want with it, for as long as you like. You can read it hundreds of times, lend or give it to a friend, mark it up, fold the corners, copy down quotes, or even rip the pages out and use it for kindling. The book belongs to you, and you have use rights. But when you buy an ebook, you’re getting a license, and access may be revoked.
Likewise with games, where intellectual property law means the code to the game is not yours. You can’t just copy the code of a licensed game and modify it to play offline. Doing so, in general, violates the license agreement.
Intellectual property law gives software companies a greater ability to influence the entire lifecycle of their products than any company has ever had. If the government didn’t enforce these laws, companies would be unable to force consumers to lose games because consumers could copy and modify the code.
It’s not my intention in this article to argue whether intellectual property is illegitimate. FEE has published several articles on this over the years. I’m making a very modest point. Some might argue that the “Stop Killing Games” movement is about imposing unfair regulations. I disagree. Intellectual property law is inherently a regulation on consumers. Modifying it to impose responsibilities on companies is not adding new rules. Rather, this movement simply seeks to adjust current regulations such that they are less one-sided in protecting companies.
If you, like me, are a supporter of free markets, then it may be tempting to think this movement is just another EU regulatory overreach. But current intellectual property law already attenuates consumers’ ability to use the products they purchase, so modifying the law to restore some of their ownership rights could be a fair correction.
