End of disc production: What digitalization means for gamers
Sony wants to abolish physical games, sparking a heated debate. Many rights are lost along with the piece of plastic. Perhaps this pressure is needed for something to change, says digital law expert Martin Steiger.
What has long been normal for PC gamers is also becoming a reality for PlayStation owners: From 2028, Sony will no longer produce games on Blu-rays. This definitively marks the end of physical games. A PS6 with a disc drive is extremely unrealistic, and the next Xbox is also said to be digital-only.
The fact that Sony recently removed over 500 purchased movies from users' libraries reinforces concerns about digitalization.
I discussed this topic with lawyer Martin Steiger. In the interview, the expert on digital law explains why we lose privileges with the disappearance of physical games and why we should not give up without a fight.
Sony no longer wants to sell PlayStation games physically and, with the deleted movies from private libraries, provides proof of why digitalization poses dangers. How is something like this even possible? Why do I not have the same rights to physical products as to digital ones?
Martin Steiger: There are two reasons for this: On the one hand, there is the power of facts. A simple example: If I buy a printed book, the publisher cannot simply take it away from me again. This is also known as the principle of exhaustion, which applies equally to games on discs and other data carriers. Rights holders can then no longer prohibit me from reselling, exchanging, or lending the game. However, the copyright to the game still exists.
And why can they do that with digitally purchased games?
A digital purchase is not a purchase. That is a misleading term. Steam now points out that you only acquire a license, but only because a new law in California forces this clear notice. You enter into a license agreement – with many restrictions, such as a time limit. You do not enter into a purchase agreement.
On the other hand, there is copyright law. This is not a natural right. It arose through intensive political lobbying. In the same way, more rights for consumers could be achieved through lobbying for licenses.
As an individual consumer, you are at the mercy of companies.
What rights do I have to digital games at all? Is there a right of return as with physical products, or do companies only act out of goodwill?
In Switzerland, there is no statutory right of return or withdrawal for defect-free products. This is a widespread misconception. Such offers are voluntary measures for customer loyalty. In Europe, however, there is generally a general statutory right of withdrawal. Here, we are always dependent on goodwill.
Nintendo is using Game Key Cards for the Switch 2 in addition to classic game cartridges. These are also physical games, but they do not contain any game data, only a key to download the game. What do you think of this system?
It's better than no physical games at all: there's a used market and you can share games with friends. However, Digital Rights Management (DRM), i.e., copy protection, is associated with the card. You own the physical item, but not the digital game.
If Nintendo no longer participates, the card is at best a collector's item, but you can no longer play.
Is the problem with the licensing system because we already waive many rights when we acquire it?
Exactly. This system was established very early for games and other software. In the digital space, DRM (Digital Rights Management) enables total control. Sony, in particular, is notorious for restrictive copy protection. Sony tried early on to restrict the copying of games. The question was and is: Who is allowed to copy what? At that time, however, discs still dominated. Swiss copyright law clearly states that backup copies may be made. For games on discs, gamers therefore have at least some control over the purchased copy. With an online service, however, control lies with the provider.
So, the chances are slim that I will ever be able to exchange or resell digitally “purchased” games?
That is a political and legal question. In Europe, there have already been political and legal disputes about what is permissible.
The simplified conclusion is: The software industry has won.
The license and platform model with user accounts has prevailed. And now that physical data carriers are disappearing, there is no longer a plan B. Even those who value archiving lose this important alternative. Physical media still act as a certain corrective today, because providers cannot get away with everything. Since the major providers can now completely abolish discs, they will have all the trump cards in their hands in the future.
So, with the loss of physical products, do we lose further rights?
We lose practical ways to dispose of products we have paid for. This is a general development. Digitalization enables more and more surveillance and control. The most important corrective measures are state regulations, such as the Digital Markets Act (DMA) and other decrees in Europe.
Nevertheless, there seems to be no other way than the political one.
Gamers are highly fragmented. For individuals, it is practically impossible to defend themselves against multi-billion dollar tech corporations. Laws, collective legal protection, and effective consumer protection organizations are needed. However, the industry resists any regulation tooth and nail. And even if there are laws, they first have to be enforced.
According to Ubisoft, gamers need to get used to not owning their games. Do you agree with this statement?
At least that is the industry's goal, and they notice that it works. Consumers may clench their fists in their pockets, but they play along. I can't blame them. They want to play and not politicize. The frustration is quickly forgotten. The whole thing works because the market is there.
How does Switzerland differ from the EU regarding the legal situation?
Consumers in Switzerland are worse off. There are two main reasons for this: Consumer protection is less developed than in the EU, and we enforce the existing protection incompletely. Furthermore, Europe now has extensive tech regulation. This includes the Digital Content Directive, the Digital Services Act (DSA), and the Digital Markets Act (DMA). These decrees by no means solve all problems, but they create useful individual rights and give authorities important powers vis-à-vis tech corporations.
However, the EU rejected the “Stop Killing Games” initiative. Why do such initiatives have no effect despite 1.3 million signatures?
Such signature collections do not have the same weight in the EU as in Switzerland. From a Swiss perspective, the European Citizens' Initiative, with its non-binding nature, is more of a petition. A real popular initiative would have more binding force, but that does not exist in the EU. Gamers would have to stop playing. But an individual thinks: “That won't change anything.” That's why economic strength prevails. “Stop Killing Games” was only about ensuring that already paid games could not be arbitrarily deleted and would remain playable permanently.
Something like this is hard to imagine analogously. Digitally, it is completely normal because we don't directly feel something being taken out of our hands. We get used to the short leash of tech corporations.
Should we have intervened 20 years ago when Steam started digitizing games? Is it too late?
No, it's not too late, and the problem didn't start with Steam either. But to achieve something, political will must be bundled. Switzerland could also require providers to enable certain functions, such as the resale of a license, if they want to be represented in the Swiss market. Sometimes it doesn't take much to get the ball rolling. Currently, the prospects are bleak, but perhaps the pressure of suffering must first become great enough for something to happen.
As a child, I wasn't allowed to have any consoles. It was only with the arrival of the family's 486 PC that the magical world of gaming opened up to me. Today, I'm overcompensating accordingly. Only a lack of time and money prevents me from trying out every game there is and decorating my shelf with rare retro consoles.
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