When purchasing video games, most sellers require that the consumer agree to a so called end user
license agreement (EULA), which specifies a number of terms and conditions between the two
parties. Several of these terms relates to the copyright of both the video game itself and content that
the user (consumer) might generate and add to the game.
A recent ruling from a Paris court has determined that such terms in Valve’s Steam Subscriber
Agreement, along with a number of other terms, were unfair according to French consumer protection
laws and French copyright law. This decision has sparked some debate, as critics believe that this
might hurt video game developer’s ability to sell copies of their works.
While the application of the software directive to video games might seem obvious, it is important to
note that several aspects of a videogame, such as graphics and sound, is excluded from this directive.
A somewhat vaguely formulated stance on this was adopted in Nintendo vs PC Box by the CJEU, in
which it appears that video games as a whole are only protected by the InfoSoc directive. Even more
recent case law suggests that digital content sold through online downloads is not considered a
distribution in the eyes of the InfoSoc directive and thus no consumptions of rights happen.
This paper concludes that a term, which specifies that a videogame is a license rather than a sale, and
thus unable to be legally resold, is unlikely to be considered unfair, with respects to the unfair terms
directive, provided it only pertains to online sales. The current regime of EU copyright law does not
allow for an interpretation in which a physical sale of a videogame does not constitute a distribution
with regards to the InfoSoc directive.
Furthermore it concludes that, while a transfer of rights or a perpetual license to user generated
content without any remuneration for its creator is not prohibited, it is likely to be considered unfair as
it provides a significant imbalance between the two parties.