Sunsetting Video Games: California Considering Increasing Longevity

In another demonstration of U.S. digital policy taking a page out of European legal trends, California’s proposed bill Protect Our Games Act (also Act) continues to be in committee after failing passage and being granted reconsideration in June.

In Europe, the Stop Killing Games movement has attempted to rally EU and UK legislators to address video game consumer protection issues as the industry continues to transform. Notably in June, the European Commission determined it cannot require a game to remain playable ​after the publisher decides to no longer support it. Instead, the Commission stated that it will “initiate an exchange with the video game industry and consumer representatives with the aim to draw up an industry code of conduct on managing video games’ ‘end of life.’”

As currently drafted, California’s Protect Our Games Act would apply to games first available for purchase or released for purchase on or after Jan. 1, 2027. Before a game operator sunsets services necessary for “ordinary use” of a game, the game operators will have to provide a prior 60-day notice to consumers as well as an alternate version of, a patch or update to, or a refund for the game, as provided. “Ordinary use” is currently defined to mean the “purchaser’s ability to use the core features of a digital game, consistent with the reasonable expectations of a purchaser based on how the digital game was advertised, marketed, or otherwise described by the digital game operator at the time of purchase.”

These consumer protections echo similar sentiments from the “freedom to tinker” movement, which aims to provide consumers with the right to repair, modify and improve the technological devices they own.

Under the Act as currently drafted, if an operator ceases to provide services necessary for the ordinary use of the digital game, the operator is prohibited from selling, leasing or otherwise distributing a version of the game that cannot be used by a purchaser independent of services controlled by the operator. For example, games that require the player to access an online server supported by the operator that are later deprecated cannot be republished as a new version unless the new version does not require access to such online servers. This is likely to help combat recent practices in the industry that involve shutting down live-serviced games only to quickly repackage the game as a remaster to charge the same community of players a second time for access to the same game.

As currently drafted, there will be no private right of action under the Act, and actions for relief may be prosecuted exclusively in a civil action by the California attorney general or by any district attorney.

We’ve also addressed similar issues before in our blogs California AB-2426: The Ephemeral Nature of In-Game Assets and Designing the ‘Buy’ Button: Clearer Disclosures, Fewer Lawsuits.

While the future of these policy movements is unclear, what is certain is that a focus on consumer protection in the digital space, including video games, is increasing.

BakerHostetler’s attorneys who are well-versed on interactive entertainment and video games work together across areas of law, including advertising, intellectual property, regulatory response and consumer protection, to address these cutting-edge policy initiatives. Where a video game developer and publisher cannot rely on explicit statutory requirements, we help determine best practices to mitigate risk. We continue to monitor the California Protect Our Games Act to see if it will gain more traction, considering that Aug. 31 is the last day for each house to pass bills and the legislature does not reconvene until January.