In a recent announcement, Rep. Ritchie Torres of New York announced plans to introduce the Power To The Players Act, a proposed federal legislation that is designed to strengthen consumers’ rights in the video games they have purchased. The proposal would direct the Federal Trade Commission (“FTC”) to establish regulations under which consumers would “own,” rather than merely license, the games they purchase and would preserve consumers’ ability to transfer and resell their games. Companies would also need to provide an offline mode for online games before the servers supporting them are shut down.¹

If all of this sounds familiar, it should. We previously discussed California’s AB 1921, the Protect Our Games Act, in a prior blog post, where we highlighted that, although the proposed law may be viewed as a win for consumers concerned about losing access to purchased games, its requirements could create practical problems for video game companies.² In short, California’s AB 1921 would require certain games to remain usable after the online services necessary for their ordinary use are discontinued or require the operator to provide a refund. As we explained, that seemingly straightforward requirement does not necessarily account for the realities of modern game development, including games that depend on proprietary server infrastructure, online authentication, third-party licenses, and other technology that cannot simply be transferred to consumers or converted for offline use.³

It also raises an important question of scope. California’s AB1921 defines a “Digital Game” broadly as “any game that a person accesses and manipulates using a specialized electronic gaming device, computer, mobile device, tablet, or other device with a display screen, including any add-ons or additional content for that game.”⁴ As drafted, the legislation could therefore sweep in creators of vastly different sizes, potentially extending beyond traditional game publishers and developers to individual creators building experiences on user-generated-content platforms. The proposal does include a carveout for games offered for “no monetary compensation,” but that distinction still leaves uncertainty for freemium games and user-generated content, particularly where an experience is free to access but offers additional content or features for purchase. For now, the California proposal draws the line based on monetization rather than the size or sophistication of the creator. 

Those concerns are echoed in the Power To The Players Act, while also adding another potentially significant issue: what it means for consumers to “own” a digitally purchased video game rather than receive a license to use it. The impact of the proposal on developers and publishers will ultimately depend on the language of the legislation and the regulations it directs the FTC to adopt.⁵ If the proposed bill requires developers to make server-dependent games playable offline, it may present many of the same technical, intellectual property, licensing, and commercial challenges we identified with California’s AB 1921.⁶ Additionally, depending on how “ownership” is ultimately defined, the proposal may raise additional questions regarding the longstanding licensing model for software.

If you have questions regarding the Power to the Players Act or California AB 1921, please feel free to reach out to either Sara Tracy at stracy@fkks.com or Nathan McKay at nmckay@fkks.com.