Angélica Lomba (master's student in European Union Law at the School of Law of University of Minho and Legal Intern specialising in Digital Law, with a particular focus on the GDPR and the AI Act)
Introduction
As we enter the digital age, more services are becoming entirely digital, especially in the video game industry. This is a trend we have been seeing recently, even with Nintendo games, where the “physical” version is no longer physical – because even if you bought the box with the cartridge, you would not be able to play the game until you have downloaded it. The game is not inside the box; it is just a “digital key” that allows you to download and, subsequently, access the game.
Following this trend, Sony recently announced the cessation of the disc format releases starting in January 2028,[1] citing players’ growing preference for digital versions over physical media.
This development raises serious concerns, both regarding consumer protection and the issue of property rights. We may be entering a period in which the right to property, whilst formally recognised, is becoming increasingly hollow. This right is well established in European law: it is addressed by Article 345 of the Treaty on the Functioning of the European Union and enshrined in Article 17 of the Charter of Fundamental Rights of the European Union.
Article 17(1) of the Charter reads: “Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions except (…) in the cases and under conditions provided for the law, subject to fair compensation”.[2] Deprivation is therefore not absolutely prohibited, but it must always be legally grounded and accompanied by adequate compensation.
The question this article seeks to address is whether that guarantee is effectively upheld in the context of digital gaming.
What does it mean to possess something, and why are we witnessing its decline?
Firstly, what we need to understand is that, due to the complete transition to digital gaming that PlayStation is prepared to make – apparently based on players’ interests –, even our option to own a physical copy of a new game released after January 2028 will disappear.
Thus, what consumers will be purchasing is the right to download a licence.
Actual ownership will give way to what might be described as “non-ownership”: something you buy ceases to be something you own.[3]
The legal basis for this shift lies in end-user licence agreement with thousands of words, that most consumers do not read. Which in substance means: “you don’t own the [games] you bought; you merely license them. That is to say, you have the permission to [play] them. Until one day, you don’t”.[4]
This is not a hypothetical concern. Following the end of an agreement with the production company StudioCanal, Sony removed more than 500 films and TV shows that users had purchased from the PlayStation Store, without any compensation.[5]
PlayStation’s current terms of service in Europe are contributing to highlighting the violation of our right to access the highest level of protection as consumers – in accordance with Article 38 of the Charter and Articles 12 and 169 of the Treaty on the Functioning of the European Union – with regard to the provision stipulating the permanent deletion of PlayStation user accounts and any digital games contained therein after three years of inactivity, subject to a notice period of just six months.[6] Hence the loss of the guarantee of preservation, which demonstrates that the regulatory vacuum surrounding property rights in digital assets is not merely a technical shortcoming, but undermines the European Union’s stated commitment to being a rights-based digital regulator.
These terms reflect a significant imbalance between the parties, within the meaning of Article 3 of Council Directive 93/13/EEC, under which the licensor retains extensive unilateral powers, whilst the consumer bears the associated risks without equivalent safeguards.[7] At the same time, this constitutes a failure to ensure equal treatment under Articles 20 and 21 of the Charter – a principle which, in contexts of structural disparity, requires that the weaker party be afforded greater protection, not less.
This situation also entails the loss of other rights associated with ownership. Consumers will no longer be able to do what they see fit with their games: lend them, swap them or resell them. They lose the right to freely dispose of them. This confirms the argument mentioned earlier: the right to property is becoming hollow, a mere illusion.
Furthermore, Sony’s decision creates a significant imbalance in the market. By depriving consumers of the ability to resell games which, in principle they have already purchased (when in fact they basically acquired a licence), Sony retains exclusive control over sales.
This, in combination with the ability to create great exclusive storylines accessible only through their latest gaming consoles, PS5, may reinforce Sony’s control over particular distribution channels, reduce consumer choice, and weaken competition. This allows Sony to maintain what is known as the “Sony tax” and higher prices,[8] key factors in securing its abusive dominant position in the market – behaviour strictly prohibited by Article 102 of the Treaty on the Functioning of the European Union. As a result, the consumer will be forced to buy from the PlayStation Store, discontinuing the options available from retailers and resellers, such as FNAC or CeX. We could take Bloodborne as an example. The game has a large and loyal community base and highly responsible for the creation of a new genre of video games – the soulslikes.[9] Consumers can only play this game on PS4 or PS5. Even though we have the physical version in stock today, if Sony’s decision moves forward, exclusives will only be obtainable through their store. Therefore, it might form part of a broader assessment of platform power, exclusivity, and consumer choice. To make matters worse, Sony also decided to stop releasing its single-player exclusive titles on PC.[10]
This shows that Sony’s decisions contribute to planned obsolescence in gaming,[11] whereby Sony and other companies can perpetuate full control over the market and “gaslight”[12] the consumer.
This demonstrates a failure to respect Article 21 given that access to new games is becoming increasingly difficult for consumers on lower incomes, when, in fact, the games industry should be promoting and facilitating access so that everyone can enjoy its creations, regardless of their social background.[13]
In light of these concerns, a Dutch non-profit organisation, Stichting Massaschade & Consument, has brought legal proceedings against PlayStation,[14] seeking compensation of 400 million euros for anti-consumer practices.[15]Previously, a similar complaint regarding the 30 per cent commission charged by Sony on digital markets was also reported in the United Kingdom.[16]
We have also noted complaints from France, notably from the consumer organisation UFC-Que Choisir,[17] and from the US, based on the same issue: Ubisoft’s decision to shut down the online servers for The Crew. Meanwhile, legal proceedings are ongoing, and it is public knowledge that the company has stated that the cases are “based on a ‘faulty assumption’ of video game ownership”.[18] Furthermore, it was announced recently that Mexican lawmakers are set to file an antitrust complaint against PlayStation, allegedly for the same reasons as those mentioned above: anti-competitive practices.[19]
For these reasons, we can conclude that this is becoming a global phenomenon.
These legal proceedings demonstrate that Europe is already failing to guarantee consumers’ rights without judicial intervention, partly by allowing the type of contractual clauses described above to be applied unchallenged and on the basis that the existing legislative framework fails to provide the protection it promises, as we shall see below.
Before that, and considering what we have been stating, it is necessary to consider the Stop Killing Games initiative.[20]
Stop Killing Games initiative and underlying legislative problems
This initiative aims to elicit a response from the European Commission regarding the alleged breach of our property rights and consumer rights in this sector, through Regulation (EU) 2019/788,[21] which guarantees citizens the right to address the Commission directly when the intention is to submit a legislative proposal – to which the European Commission had already officially responded on 16 June 2026.
In its response, the Commission stated that the European Union has, to date, ensured a high level of protection for consumers’ interests, through the various legislative instruments at its disposal, but primarily due to Directive (EU) 2019/770.
As set out in Article 3, this directive applies to any contract for the supply or provision of a digital product or service for which a consumer has paid or has undertaken to pay a price.[22] This makes the directive suitable for regulating contracts relating to video games.
Under Articles 7 and 8, digital content must always meet the conditions necessary to ensure conformity, such as the “description, quantity and quality, and possess the functionality, compatibility, interoperability and other features”[23]required by the contract. Otherwise, liability will fall on the trader, as provided for in Article 11, as will the burden of proof, in accordance with Article 12. However, there are cases in which consumers assume this role, due to a lack of cooperation on the part of traders, pursuant to Article 12(5).
Besides, the reason why the Commission attached particular significance to this directive in the first place lies in the remedies it grants to consumers, depending on the root cause of the problem – whenever the trader fails to supply the digital product or service, or it lacks conformity.
In the first case, the solution lies in the supply itself or, if that is not possible, the consumer may exercise their right to withdraw from the contract – Articles 13(2) and 15. In the second case, the same option is available, alongside the possibility of obtaining a proportionate reduction in price, in accordance with Article 14(4).
We now come to the point we were heading towards:
The right of withdrawal is a right exclusive to the consumer, acting as a safeguard to protect consumers from any adverse effects arising from the trader’s conduct. This brings us back to the question raised earlier: why do Sony’s terms of use allow it to unilaterally terminate the contract, when the European Union should remain vigilant and, above all, protect the consumer?
The European Commission put forward intellectual property rights as a counterargument, claiming that keeping servers permanently active (the main issue raised by consumers in this petition, namely the company’s ability to shut them down remotely) could infringe upon those rights, but, above all, could have economic and reputational implications.
Firstly, as we have briefly discussed until now, the right to property, the right to own something as the transition to digital happens is being replaced by a right to access, by a license conceived by the gaming company. In other words, we understand that when we buy a game, it is not our game, it remains theirs. We simply have the right to access a copy, that can be revoked at any time of their choosing. So, basically our consumers’ rights are shrinking to an idea of “own[ing] nothing and be happy about it”.[24]
This means that the companies have an advantage in relation to the consumer because they are fully aware of their intellectual property rights, copyrights and the way they can use them to their advantage on the market. This comes from the fact that most consumers are unfamiliar of their rights, leading them to a false belief of ownership, mostly because of the company’s marketing strategy. Many times, especially in online shopping, consumers click “buy” or “add to cart” without understanding or being aware that what they have just purchased is not owned, but merely licensed.
On the other hand, the intellectual property rights remain on the side of the companies, valuing their creative works and productivity, as stated in Article 17 (2) of the Charter. In essence, both consumers’ and companies’ rights are important, but they are not on equal footing to begin with. Consumers’ property rights in relation to the copy is shrinking, while their position in relation to intellectual property was never one of ownership at all, that right has always remained, and continues to remain, with the creator.
Based on the foregoing, we understand that when we buy a game, we are gaining access to a copy of something created by someone else. The intellectual property rights remain with the creator. The same applies when we buy a book. We pay for it, we can read it, but we know that the story in question is a creative work by a specific author and therefore belongs to them. Even so, we do not expect librarians to come to our homes demanding the return of books, unless they have been borrowed from the library. Nevertheless, we have a genuine ownership with games we do not.[25] In response, it would make sense that, when advertising these products, the approach would be different to people have full scrutiny and comprehension about what they are in fact acquiring or more correctly paying to have access to, as games are becoming closer to streaming subscribing rather than a one-time payment product.
Indeed, on the PC market, there exists a community of modders[26] for games. They take the original game and modify it, to create a different experience for the end user. This might be harder to achieve on a gaming console, but it is still possible. On the condition that these modders do not claim the art, the code, the music, the characters or the story as their own, do not profit from sharing the mods or sell illicit copies of the game, then intellectual property or more precisely their copyright is not really at risk. And if they do, companies can use legal procedures to force them to be removed.
In fact, this can be proven by the Sony v Datel ruling. In this matter, the Directive 2009/24/EC related to the protection of computer programs was brought to question in proceedings before the Court of Justice of the European Union,[27] initially taken to a federal German court in which Sony alleged a violation of its copyrights and demanded fair compensation after Datel created software that ran at the same time as theirs and introduced new gaming features such as unlimited boost and the access to new drivers without the need to earn points to unlock them. The player to have access to it, would simply need to download it to their PC RAM and then be able to incorporate those bonuses in the original game. From Sony’s perspective that was precisely the problem, as the company interpreted this as an alteration of its original software, therefore a violation of its intellectual property rights.
Considering this, the German federal Court referred two questions to the CJEU, which ruled in favour of Datel, because the Court understood that the main goal of the Articles 1 to 3 of this Directive was not affected as the running program did not enable the content to be reproduced or subsequently created.[28]
On the other hand, upon closer examination of the supposed cost-cutting efforts undertaken by companies, we have concluded that most of the pressure stems from measures taken by the companies themselves. There is always a choice. A game company can, in any case, release an offline game rather than an online one, allocate fewer resources to reduce costs, and adopt other measures. Sometimes, as demonstrated by Sandfall Interactive, the studio behind Clair Obscur: Expedition 33, less is more.
Another option could be to establish an end-of-life cycle for online games. In other words, companies should draw up a plan for when they decide that the servers for online games are no longer profitable. For example, Warner Bros.’ Multiversus, which was shut down in May 2025, allows players who purchased the game to keep their saved data and play it offline. Essentially, whenever a game server is to be shut down, publishers could provide a version of the game that no longer required a connection to the servers or update it to allow it to be played offline or on a local server.[29]
Despite this, there is an underlying ambition to maximise profit, and to that end, it proves useful to restrict the consumers’ access to games they have already purchased, for the purpose of driving further sales. Not to mention that games are becoming increasingly more expensive. If online games were genuinely a disadvantage, none of these companies would make them.
Furthermore, the economic principle is already covered by Article 14, referred to above. This Article clearly reflects the attention paid to each case brought under this directive and the proposed solution to it.
The real difference and the actual problem with the contractual clauses of gaming companies lie in their attempt to predetermine the outcomes, even before the product has reached the market. Strictly speaking, these companies are attempting to predefine a commercial practice without any legal basis conferring such a possibility upon them.
Bearing this in mind, we propose a possible response, which could, in future, be considered a breach of compliance under Article 8 of Directive (EU) 2019/770 and constitute a possible update to Article 3 of Directive (EU) 93/13/EEC as a complementary legislative instrument in such situations. Furthermore, we propose the creation of a new directive aimed exclusively at regulating the gaming sector in depth.
Moreover, we emphasise and support the idea proposed by the Commission of making an industry code of conduct.
Conclusion
Although the Commission has recently stated that it will not interfere in decisions taken by companies[30] – whether they sell games online or in other formats – it must act regarding terms of use, as consumer rights end up being mere recommendations and become ineffective. There is no doubt that this situation needs to be resolved, so that our values do not remain merely words on paper and nothing more.
A prime example is a recent court case between a Brazilian Xbox user and Microsoft, which the user won, as the final ruling required Microsoft to restore access to his account – access that had been lost due to a cyberattack and in relation to which Microsoft had attempted to shirk its responsibilities on the basis of the terms of use, forcing him to purchase games he had already bought. [31]
This represents a major shift in the trend shown by companies to shirk their responsibilities.
On the other hand, it is encouraging to see people standing up and demanding the rights to which they are entitled and which our societies recognise as fundamental democratic values.
We cannot allow the most powerful companies to profit at the expense of our rights. A first step has already been taken, and this could mark a turning point not only for consumers, but also for those who simply enjoy a good story and unforgettable characters after a stressful day, to unwind from the pressures of everyday life.
So, above all, this could be a victory not only for gamers, but also for a truly democratic society.
[1] Sid Shuman, “Physical disc production ending in January 2028 for new games releasing on PlayStation consoles”, PlayStation.Blog, July 1, 2026, https://blog.playstation.com/2026/07/01/physical-disc-production-ending-in-january-2028-for-new-games-releasing-on-playstation-consoles/; Tom Gerken and Laura Cress, “PlayStation will stop releasing games on discs in 2028”, BBC News, July 1, 2026, https://www.bbc.com/news/articles/c0ryjyvjq41o.
[2] Luís Couto Gonçalves and Maria Miguel Carvalho, “Article 17 – Right to Property”, in The Charter of Fundamental Rights of the European Union: a commentary, ed. Alessandra Silveira et al. (Braga: JusGov/UMinho Law School, 2024), 181.
[3] Aaron Perzanowski and Jason Schultz, The end of ownership: personal property in the digital economy (Cambridge, MA: MIT Press, 2016), 6.
[4] Perzanowski and Schultz, The end of ownership, 2.
[5] Gerken and Cress, “PlayStation will stop releasing games on discs in 2028”.
[6] Rasmus Larsen, “PlayStation can delete all your digital games after 3 years of inactivity”, FlatpanelsHD, July 6, 2026, https://www.flatpanelshd.com/news.php?subaction=showfull&id=1783340582. The most relevant terms of use are the numbers 21.2 and 21.3. Sony Interactive Entertainment Network Europe Limited, “PlayStation Terms of Service”, version 12, last updated April 2026, accessed July 11, 2026, https://www.playstation.com/en-dk/legal/terms-of-service/.
[7] Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, Official Journal of the European Communities L 95, April 21, 1993, 29-34, http://data.europa.eu/eli/dir/1993/13/2022-05-28.
[8] Consequently, it is estimated that the digital versions cost around 47% more in comparison with the physical versions. Sherif Saed, “Games are almost always cheaper in shops, says new report, just as Sony announces an end to Playstation discs and brings retailers’ futures into question”, Eurogamer, July 9, 2026, https://www.eurogamer.net/retail-shop-games-cheaper-report-sony-ending-playstation-discs; others suggest it costs around 40-90% more, C. da Costa, “Data just proved that physical PlayStation games can be up to 90% cheaper than buying them digitally”, Yahoo Tech, July 10, 2026, https://tech.yahoo.com/gaming/articles/data-just-proved-physical-playstation-182511392.html.
[9] Brian Shea, “The soul of Soulslike”, Game Informer, July 3, 2026, https://gameinformer.com/feature/2026/07/03/the-soul-of-soulslike.
[10] Sal Romano, “Sony Interactive Entertainment to no longer release single-player games on PC”, May 18, 2026, Gematsu, https://www.gematsu.com/2026/05/sony-interactive-entertainment-to-no-longer-release-single-player-games-on-pc.
[11] Matthew Winglet, “Digital graveyards: addressing video game obsolescence through a preserved games mandate”, North Carolina Journal of Law & Technology, v. 27, iss. 4 (2026): 583-616, https://scholarship.law.unc.edu/ncjolt/vol27/iss4/3.
[12] Winglet, “Digital Graveyards”, 594.
[13] Laura Cress, “Does the UK video games industry have a class problem?”, BBC News, July 16, 2025, https://www.bbc.com/news/articles/cvg9jeg2nxgo.
[14] Lewis Packwood, “Sony faces Dutch lawsuit over ‘artificially high PlayStation prices’”, GamesIndustry.biz, June 26, 2025, https://www.gamesindustry.biz/sony-faces-dutch-lawsuit-over-artificially-high-playstation-prices.
[15] Kyle Gratton, “PlayStation facing $450 Million lawsuit following physical media announcement”, Screen Rant, July 7, 2026, https://screenrant.com/playstation-450-million-lawsuit-physical-media/; Saed, “Games are almost always cheaper”; Ted Litchfield, “Dutch consumer group suing PlayStation argues the end of physical discs just proves its point: ‘Sony alone decides what a game costs and even how long you are allowed to use it’”, PC Gamer, July 12, 2026, https://www.pcgamer.com/gaming-industry/dutch-consumer-group-suing-playstation-argues-the-end-of-physical-discs-just-proves-its-point-sony-alone-decides-what-a-game-costs-and-even-how-long-you-are-allowed-to-use-it/.
[16] Packwood, “Sony faces Dutch lawsuit over ‘artificially high PlayStation prices’”.
[17] Leo Marchandon, “French consumer group sues Ubisoft over shutdown of online game ‘The Crew’”, Reuters, March 31, 2026, https://www.reuters.com/technology/french-consumer-group-sues-ubisoft-over-shutdown-online-game-the-crew-2026-03-31/.
[18] Chris Kerr, “Ubisoft tells the crew players they never actually owned the game”, Game Developer, April 10, 2025, https://www.gamedeveloper.com/business/ubisoft-tells-the-crew-players-they-never-actually-owned-the-game.
[19] Ulises Contreras, “Mexican lawmakers to file antitrust complaint against PlayStation and Sony over PS Store following the potential end of physical games”, LEVEL UP, July 12, 2026, https://www.levelup.com/en/news/mexican-lawmakers-to-file-antitrust-complaint-against-playstation-and-sony-over-ps-store-following-the-potential-end-of-physical-games/.
[20] Ross Scott et. al, Stop Killing Games, 2026, https://www.stopkillinggames.com/en.
[21] Regulation (EU) 2019/788 of the European Parliament and of the Council of 17 April 2019 on the European citizens’ initiative, Official Journal of the European Union, L 130, May 17, 2019, http://data.europa.eu/eli/reg/2019/788/2024-05-02.
[22] Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services, Official Journal of the European Union, L 136, June 22, 2019, http://data.europa.eu/eli/dir/2019/770/oj, Article 13.
[23] Directive (EU) 2019/770, Article 7(a).
[24] Richard Stewart, Michael B. Charles and John Page, “A future with no individual ownership is not a happy one: Property theory shows why”, Futures 152 (2023): article 103209, https://doi.org/10.1016/j.futures.2023.103209.
[25] Even in relation to an eBook a videogame is at disadvantage because it requires online access, while the eBook does not.
[26] Modding is a colloquial term for modification, Margherita Manca, “Modding, videogames, and copyright: what is legal and what is not? (C-159/23)”, Canella Camaiora, March 10, 2025, https://www.canellacamaiora.com/modding-videogames-and-copyright-what-is-legal-and-what-is-not-c-159-23/.
[27] Court of Justice of the European Union or as in this moment forward CJEU.
[28] Judgment CJEU Sony Computer Entertainment Europe Ltd v Datel Design and Development Ltd and Others, 17 October 2024, case C-159/23, ECLI:EU:C:2024:887, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62023CJ0159.
[29] Chris Scullion, “US Bill requiring paid games to be playable after they shut down has failed to pass a senate vote”, Video Games Chronicle, June 30, 2026, https://www.videogameschronicle.com/news/us-bill-requiring-paid-games-to-be-playable-after-they-shut-down-has-failed-to-pass-a-senate-vote/.
[30] Zack Zwiezen, “EU can’t force Sony to keep making physical games, says consumer rights commissioner”, Kotaku, July 10, 2026, https://kotaku.com/eu-cant-force-sony-to-keep-making-physical-games-says-consumer-rights-commissioner-2000714728.
[31] Adam Corsetti, “Microsoft loses lawsuit after blocking hacked Xbox account with digital games”, Notebookcheck, July 11, 2026, https://www.notebookcheck.net/Microsoft-loses-lawsuit-after-blocking-hacked-Xbox-account-with-digital-games.1339855.0.html.
Picture credit: by Ron Lach on pexels.com.
