Reports emerged this week that allegedly that Apple is now longer making games which have been removed from the App Store available for re-download by existing purchasers. Cue Internet consternation. But what’s the actual legal position?
- For physically distributed games, it is now common industry practice that the publisher owns the underlying game but that the consumer owns the physical copy which he/she purchased (though issues have arsen regarding the consumer’s ability to resell the game). How that fits into a situation where the game has online elements (eg multiplayer) has not been definitively established legally, but typically publishers have acted as if any online game features are publisher property to be provided or withdrawn or amended at will.
- For digitally distributed games, publishers have traditionally acted as if both the underlying game AND the actual game copies are publisher property, except that the publisher decides to license (i.e. give limited permissions over) the digital game copies to consumers.
- The actual legal position regarding digitally distributed games is less clear. You can read more about that here, but broadly speaking: in the U.S., there is case law arguing that users only obtain a licence over digital content, which in appropriate circumstances can be withdrawn. The EU initially seemed to argue for a more consumer-friendly stance but since then it seems to have watered down its position in successive cases. It did introduce a big new raft of consumer laws (the Consumer Rights Directive) last year, but they don’t really affect this issue.
- More generally, no developed country has yet introduced any legal rules regarding software archiving or similar legal protections to permit consumers to continue to have access to their purchased digital content without it being arbitrarily removed.
How does all this affect what Apple is said to have done?
- As you can see, the legal situation we currently have would permit (though not necessarily approve of) Apple deciding to take down a game, particularly if it had legitimate reasons – e.g. the game contains defamatory or other illegal content or infringes third party IP rights.
- In those situations, it is relatively common for online businesses to take down the offending content, if only to protect themselves from legal liability and to stop future problems. Another common reason to take a game down is if the publisher requests it (this doesn’t happen so much on mobile but it does elsewhere).
- But what if Apple actually stops someone who already bought the game from redownloading it? This is of course the nub of the problem: Apple has to weigh up protection of its own legal position and the enforcement of its T&Cs on the one hand against the legitimate expectations of purchasing consumers on the other hand. Clearly, consumers have lost out here. Is that legal? As explained above, the legal position is so grey it is hard to say, particularly in the absence of much consumer protection legal precedent here. Nor is there any clear industry practice here: some platforms would insist on consumers being able to re download in the future unless there were serious legal issues, but many would not.
- In fairness to Apple, there don’t seem to have been any reports that game copies ALREADY installed on user devices are being removed. That would be the ultimate protective step but also the one most likely to cause consumer consternation.
- On the other hand, against Apple, why not communicate this policy change (if indeed there has been one) and explain why it is needed in advance? This is good legal and marketing practice which is becoming more and more common in the online world. It’s good to talk!
Now whether that is a *good* legal position, or whether it will remain the case in the future, are different questions. Some platforms argue hard to retain the redownload ability for purchasers unless there are serious legal issues. Consumers are becoming more aware of the importance of these issues. Software archiving and abandonware type matters, traditionally a niche discussion point, are rising up government agendas (slowly). Maybe we’ll see change – just not yet.
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