Good Old Games (“GoG”) gave many of its users a bit of a scare in October when it shut down service in a marketing ploy to debut their redesigned storefront. As one of the few significant publishers to release games completely DRM free, their short lived disappearance begged the question: what happens to my game purchases when a publisher/service disappears? Hopefully, GoG will be around for a long time, but on the unfortunate day that the doors actually close, their customers will still have their DRM free games. Customers of other more restrictive services (which is to say, all of them) will have fewer options. With the stringent DRM regimes and alternative business models in digital distribution, gamers may one day pwn but not own their games.

The cultural expectation of platform agnosticism has been a feature that PC gamers demanded. Even console gamers no longer expect their games to function only for a single system, increasingly receiving backwards compatibility in their new systems: your PS2 games will run on your PS3, if you are lucky. Of course, PC users have long enjoyed the digital distribution services of Steam and other services (Direct2Drive, Gametap, Big Fish). Despite what some analysts predict, with the rise of game streaming with OnLive and the success of each major console manufacturer’s respective digital storefronts, physical media and its platform dependency may be a thing of the past. The NPD estimates that in 2010 digital distribution accounted for approximately $5 billion USD, with digital game sales overtaking retail in the first half of 2010. Going digital has given publishers new tools to protect their intellectual property. How publishers structure user access and digital rights management may change how gamers buy their games, and whether gamers will own what they buy.

PC gamers have long griped about the various restrictive DRM systems employed by publishers limit legitimate users access to their games. From Assassin’s Creed 2 requiring an “always on” internet connection, to Spore limiting the number of times the game can ever be installed. Some of Steam’s early users may have forgotten the instability of the system when it was first introduced, but even today users still occasionally joke/gripe about getting “steamed” when their client fails to connect to the server and disables access to their games. With many new games requiring continuous online validation in order to play, one must ask whether gamers can be said to “own” their purchases if publishers keep such tight control over access.

The new business model of streaming games is clear in its thrust to provide rented access over ownership. In the December 2010 issue of PC Gamer, OnLive CEO Steve Perlman candidly admitted that its customers do not own any of the games they have “purchased,” but are only renting access. (Dude, Where’s My Game? PC Gamer, Dec. 2010, at 14.). Should OnLive start charging a monthly fee for their system (currently free), and if customers cancel, they would lose their right to access the games for which they have already paid. Even more established digital distributors like Direct2Drive are experimenting with renting digital access to games. In the digital download realm, gamers still at least had the software on their machines, but with streaming content the game code is never completely copied over to the hard drive. Many publishers already write into their EULAs that their customers are purchasing a license to access, rather than ownership of their games, which the 9^th circuit has been content to allow licensors to dictate the terms of software licenses (click here for full decision). We may be looking toward a future where customers are left out in the cold, never truly owning the games they have purchased.