There is a clear divide between publishers and gamers when it comes to what it means to buy a game. It is often the case with digital purchases that what consumers experience as ownership of a game is, in legal terms, a licence that leaves publishers with the ability to suspend or withdraw gaming access altogether. This IP Insights article explores digital ownership, consumer expectations, and how regulation seeks to close information gaps.

For publishers, the position is clear: when consumers purchase a game, they agree to an end user licence agreement (EULA) which governs the terms of use and, as the name suggests, licenses the game to the consumer. As such, the consumer does not actually own the game or a transferable copy of it. Instead, they simply have a contractual right to access and use the game, subject to ongoing compliance with the underlying EULA terms.

The issue is less clear-cut for gamers and advocacy groups such as Stop Killing Games (SKG), who argue that the ownership status of digital games is not sufficiently clear to consumers. The marketing of games as something that can be purchased, leads many users to interpret such purchases as implying ownership. This tension has prompted regulatory intervention. In January this year, the State of California introduced legislation requiring online marketplaces to inform consumers that, when they are “purchasing” a game, they are in fact acquiring a revocable licence rather than full ownership.

This debate highlights a broader inconsistency within the industry. Unclear messaging around digital ownership has allowed advocacy groups such as SKG to gain traction, while industry bodies, including the Entertainment Software Association (ESA), have resisted calls for structural change. Much of the disagreement turns not on the underlying legal position, but on transparency and consumer understanding.

The concept of digital property

Digital ownership refers to the rights an individual has over virtual assets and digital content. While the term is often associated with emerging technologies such as NFTs and crypto‑assets, it also encompasses a wide range of online data and content used and controlled by individuals, including in‑game assets.

Courts and legislators have increasingly recognised that digital assets can attract property rights, despite their intangible nature. In R v Lakeman^[1], the UK Court of Appeal treated virtual in‑game currency as “property” for the purposes of the Theft Act, confirming that such assets may be misappropriated in the same way as physical property. More recently, the UK Property (Digital Assets etc) Act 2025 received Royal Assent, formally recognising certain digital assets, including crypto‑assets, as personal property. These developments run parallel to a broader shift in how legal systems conceptualise 'things' capable of ownership. Historically, property law has distinguished between "choses in possession" (tangible property) and "choses in action" (rights enforceable through legal action). Many digital assets do not sit neatly within either category, prompting courts and law reform bodies to recognise a third category of property defined by control, exclusivity, and transferability.

It is now widely accepted that ownership rights can subsist in intangible, online‑only assets. The precise scope of those rights varies by jurisdiction, but the underlying principle is consistent: control over a digital asset can give rise to legally recognisable interests. This principle has gained most traction where the relevant asset is capable of independent existence or transfer outside a single closed environment. Crypto‑assets are the clearest example, but the same logic can extend to tokenised assets, digital collectibles, and certain categories of in‑game currency or items that can be held and exchanged as self-standing assets across real and digital forums.

Access‑based digital content - such as most commercially distributed video games - raises more complex questions. The digital environment introduces the important qualification that, unlike physical goods, most digital assets are inherently dependent on technological infrastructure and ongoing support. Gamers do not control in-game assets so much as make use of them whilst participating in publisher-controlled environments. The existence of these digital assets is contingent on servers, networks, and software systems remaining operational, making the asset inseparable from the infrastructure that enables it.

As a result, there is an assumed impermanence in the online world that does not directly correspond with physical ownership. Digital content does not exist independently of the systems that host and maintain it, and this reality underpins many of the legal arrangements used by publishers and platform operators.

Misconceptions around game ownership

A lack of understanding of these structural differences can lead consumers to apply familiar assumptions from the physical world to digital assets. In everyday terms, “buying” an item is commonly understood to mean acquiring permanent ownership. When purchasing a game, many consumers therefore click through EULAs without engaging with terms that make clear the game is licensed, not sold, and that the licence may be revoked if the terms are breached. Such consumer expectations are reinforced by longstanding industry practices. Digital storefronts routinely use purchase-oriented language, such as “Buy Now”, “Own”, or “Add to Library” - and present games alongside owned digital collections, creating a user experience that closely mirrors ownership rather than conditional access.

Publishers also typically reserve the right to withdraw a game or discontinue support for it. Games may be “sunset” for a range of reasons, including technical incompatibility with new operating systems, declining profitability, or the cost of ongoing maintenance and security. The same holds for games bought on physical discs, as hard kill switches via mandatory server authentication and console eco-system integration can render the disc entirely useless in the event of EULA termination. From a legal perspective, publishers are generally entitled to remove games from their platforms, reflecting the fact that the licence was never offered in perpetuity. In practice, this has taken a number of forms across the industry. Some titles become unplayable when authentication servers are shut down, even where single‑player functionality exists. Others are delisted from digital stores following the expiry of third-party music or branding licences, preventing new purchases and, in some cases, limiting redownload rights. In more complex cases, significant gameplay features or content may be altered or removed post‑launch, particularly where games operate as evolving, service‑based products.

Some critics argue, however, that this position is not communicated clearly enough to consumers. Marketing language that implies a sale can create the impression that a consumer is acquiring a game for uninterrupted personal use, akin to a physical product. SKG has acknowledged that the legal reality is more complex, and its campaign has focused primarily on improving transparency rather than challenging the licensing model itself.

Moves towards greater transparency

This publisher-gamer disconnect reflects a lag between legal form and consumer expectation. Licensing has long been standard in software, but the application of the same model to gaming products - particularly those marketed as collectible and enduring - has heightened user sensitivity to any mismatch between what a transaction feels like and what it legally delivers.

As a result, regulators have increasingly aligned with calls for clearer consumer information. California’s recent legislation is one example of a broader trend towards transparency in digital markets. Similar issues are now under consideration in the EU. For example, the European Commission recently announced it will engage with consumers and publishers on ways to improve industry standards, in response to the successful petition by the European Citizens' Initiative, 'Stop Destroying Videogames'.²

As regulatory scrutiny of the technology and gaming sectors continues to increase, greater clarity around digital ownership is likely to remain a key focus. While licensing models are well established in law, shifts in consumer perception and regulatory expectations suggest that how those models are communicated will become just as important as the models themselves.

For industry participants, the immediate issue is therefore not whether the licensing model is likely to disappear, but whether current marketing language, platform design and contractual disclosures adequately reflect the limits of the end user’s rights. As the wider digital economy moves towards recognising forms of digital ownership, it will be more important for publishers to articulate clearly when a transaction is not ownership at all, but rather conditional access to a controlled digital environment.

^[1] [2026] EWCA Crim 4.

^[2] Commission will engage with industry following European Citizens' Initiative on videogames