No, you do not own your video games… and the law confirms it!

In the street, everything is crystal clear: a cartridge, a CD or a game disc can be resold like any second-hand item. On Steam, the eShop or the PlayStation Store, the same reflex crashes into the terms of use: no “resell” button, no simple transfer to another account, sometimes even very strict rules on lending and family sharing. This gap does not come from a technical limitation, but from a legal construction that reshuffles the cards of what we think we have “bought”.

With digital distribution, we have moved from owning a medium to accessing content: subscriptions, downloads, cloud gaming, DLC, season passes…

The question then becomes explosive: does clicking “buy” online mean acquiring a transferable copy, or only a licence to use over which the publisher and the platform keep control? The example of GTA VI illustrates this: the announced “physical” edition will only contain a download key, with the full disc version ruled out, further blurring the line between a resellable object and a mere access vehicle.

And now the trend is accelerating: Sony has just announced that production of physical discs for new PlayStation games will stop from January 2028, with titles then offered only in digital formats via the PlayStation Store or as codes in shops. The message is clear: for upcoming games, including big AAA titles, the “box” will become the exception, and the PlayStation ecosystem will switch to an all-digital model by default.

For a long time, many players continued to reason as in the all-physical era: a game paid for = a good one can freely dispose of. But over the years, store terms and European case law on the exhaustion of rights in the digital world have cracked this certainty, drawing a clear line between the second-hand economy for physical media and the controlled circulation of protected files. At the same time, the “Stop Killing Games” movement has reminded us, with very concrete examples, that a purely online game can be made unplayable overnight by a simple server shutdown, even for people who did “buy” it. Carried by the European citizens’ initiative “Stop Destroying Videogames” and its 1,294,188 verified signatures, submitted on 26 January 2026, the demand nevertheless failed: in its response of 16 June 2026, the European Commission refused to establish a legal obligation to keep games playable after their commercial exploitation, relying precisely on rights holders’ exclusive rights, and only promised a voluntary code of conduct by the end of 2026. Copyright, once again, is at the helm.

Behind these developments lies a fundamental tension: preserving, for digital games, a form of second life based on the exhaustion of the distribution right, or accepting a shift to a world of non-transferable licences where resale is excluded in principle. On this choice depend the fate of a possible digital second-hand market, the classification of what the player really owns, platforms’ transparency towards consumers and, implicitly, our very conception of ownership in the age of online game libraries.

I. Digital video games are not treated as simple resellable goods

A. The video game is a complex work

A video game cannot be reduced to a simple computer program. Behind a title, there is of course a software component, but also graphics, sounds, music, a script, characters and a game interface that structure the player’s experience. This layering of creative strata makes the video game a complex work, not an ordinary good that could be resold like a simple interchangeable commodity.

This reality eventually caught up with copyright law. Under French law, the Court of Cassation very early on rejected a unitary classification of video games in favour of a distributive approach: each component follows its own regime (Cass. 1re civ., 25 June 2009, Cryo). For a while, one could bet on the pre-eminence of the code and on the practical advantages of the special software regime. But this assimilation no longer holds: the value of a game is not limited to its executable; it lies just as much in its visual universe, its staging, its soundtrack and its game mechanics.

The Court of Justice of the European Union has endorsed this analysis: a video game is a complex work that cannot be reduced to its software dimension alone, so the special regime for computer programs cannot apply to the work as a whole (CJEU, 23 Jan. 2014, Nintendo v. PC Box, C-355/12). Digital games therefore belong to a category of works for which the logic of simply reselling a copy does not apply in the same way.

From this first level of classification, the conclusion takes shape: a downloaded game cannot be regarded, without nuance, as a good that can be freely resold. Its very nature, made up of heterogeneous elements protected by different regimes, undermines the idea of a second-hand market modelled on that of physical media.

B. Downloading does not confer ownership of a medium

Unlike buying a boxed physical copy, buying a digital game and downloading it via Steam, Xbox Game Pass or the PlayStation Store never gives rise to ownership of a medium that one could hold, handle… and then resell. With a cartridge or disc, the player becomes the owner of a specific object, which they can decide to keep, lend or sell on the second-hand market; in the digital world, this physical anchor disappears and there is no longer any individualised physical copy to pass on to another player. What the consumer then obtains is no longer a good in the traditional sense, but a right of use attached to an account, a platform or a licence, and the stores’ terms of use say so bluntly: the content is “licensed”, not sold.

The nuance is anything but cosmetic: it means that the user does not have full ownership of the game, but merely an access authorisation whose scope and limits are set unilaterally in the publisher’s contract.

A misunderstanding needs to be cleared up here, without overstating the point. With a physical version, there really is a sale: the player becomes the owner of the physical medium, namely the disc or cartridge, and it is precisely this first sale that, as we will see, exhausts the distribution right in the copy. What is never transferred, whether physical or digital, is not the object: it is ownership of the work itself. The French Intellectual Property Code provides that ownership of the medium is independent of intangible ownership (Art. L. 111-3 CPI): owning the disc has never conferred any right in the work, only a licence to use it.

The difference therefore lies in what accompanied this licence: in the physical world, it was backed by possession of a material good, the cartridge or disc, which the player could enjoy, keep, display, lend or resell regardless of what happened to the service, this physical possession giving them a tangible footing and a form of autonomy. Digital distribution removes this material casing and leaves the licence bare: all that remains is a right of access dependent on the platform’s will, with no object one can hold in one’s hands.

And this licence, far from amounting to ownership, is merely a personal, non-exclusive, non-assignable and non-transferable, revocable right, limited to strictly private and non-commercial use, and temporary since it does not survive the exploitation of the game and its associated services.

In these conditions, resale changes in nature. Reselling presupposes, in principle, the ability to pass on a good one owns. Yet in the digital world, what is passed on is not an object one physically holds, but contractual access, often inseparable from the account itself and subject to non-assignment clauses. The player therefore cannot freely transfer their file or right of access as they would a boxed game, because the “right” they hold does not have the same legal substance.

Downloading thus does not move video games into the familiar category of second-hand goods. On the contrary, it places the player in a legal relationship of dependence on the platform and the publisher, which explains why, by design, the resale of a digital game is excluded in principle.

II. Copyright prevents the exhaustion of the distribution right

A. The exhaustion rule applies to physical media

In copyright law, the rule of exhaustion of rights acts as an end point to the rights holder’s control once a physical copy of the work has been put into circulation with their consent.

From that first placing on the market, the author can no longer object to successive resales of that same copy: the owner of the medium is free to sell, lend or give it away like any other tangible good.

This is exactly what makes a second-hand market for physical video games possible. Whether it is a disc, a cartridge or any other tangible medium, the copy is individualised and circulates as a second-hand object. The publisher’s distribution right in that particular copy is considered exhausted from the first sale, so it can no longer legally block its subsequent resale.

The logic is fairly intuitive: as long as a concrete medium exists, it can change hands without a new copy of the work being produced. Reselling a boxed game does not mean duplicating the game, but transferring an object already on the market, without calling into question the initial control exercised at the time of the first sale.

And what applies to resale applies to lending, giving and swapping: in the physical world, the licence to use follows the medium as its accessory. When the player hands over their disc, the right of use passes with the object to the new holder, who in turn becomes the lawful user of the copy, the accessory following the principal (accessorium sequitur principale).

In other words, exhaustion was designed for the circulation of physical media, not for managing purely digital access. And it is precisely this anchoring in the physical world that paves the way for the opposite outcome for digital games: in the absence of a tangible medium, the mechanics of second-hand resale no longer transpose automatically, opening the way to a very different solution for downloaded copies.

In French law, this logic is enshrined in Article L. 122-3-1 of the Intellectual Property Code, which transposes Article 4(2) of Directive 2001/29: exhaustion of the distribution right only applies to the sale of physical copies of a work. For computer programs, however, Article L. 122-6, 3° of the same code, transposing Article 4 of Directive 2009/24, allows a specific exhaustion which the CJEU, in UsedSoft, extended to downloaded copies, but only on condition that they are pure software.

B. In the digital world, we speak rather of communication to the public

For digital content, copyright no longer reasons in terms of the circulation of objects, but in terms of access to a work. When a game is offered online, it is not a matter of handing a physical copy to the buyer, but of allowing them to download a file or connect to a platform. Legally, this operation is much closer to communication to the public than to the classic scheme of the distribution right attached to a medium.

And this difference changes everything. The right of communication to the public does not have the same exhaustion mechanism as the distribution right: the fact that a rights holder has authorised a first making available does not mean that they then give up controlling subsequent access. Each new access, each new download, each new share may remain subject to their consent, even if the first upload was made with their consent.

This is where the resale of digital games is blocked. It is no longer a matter of circulating a single object that has already been sold, but of organising the transfer of a right of access to digital content. This new making available always falls within the rights holder’s sphere of control, which they may legitimately regulate, or even prohibit, through copyright and contractual terms.

The digital world thus escapes the familiar mechanics of the second-hand market. Whereas a physical medium, once sold, can freely change hands, a digital game remains caught in a regime in which the publisher retains much broader power over secondary uses, which explains why the player cannot dispose of it as a resellable good. The Court of Justice ruled, in the Tom Kabinet case on e-books, that supply by download falls under communication to the public, which in French law corresponds to the right of performance (Art. L. 122-2 CPI), and is not subject to exhaustion, reasoning that can be directly applied to digital video games.

III. A logic confirmed by recent case law

A. The role of the Valve / UFC-Que Choisir ruling

The French Court of Cassation has just recalled a reality that will surprise many players: a digital video game cannot be resold like a boxed game.

In its Valve / UFC-Que Choisir ruling of 23 October 2024, the first civil chamber confirmed that making a game available via a platform such as Steam falls under the right of communication to the public, and not under the exhaustion of the distribution right reserved for physical copies. In other words, the UsedSoft logic, which had paved the way for the resale of licences for downloaded software, does not apply to video games, classified as “complex works” combining software, graphics, sound, script and characters. The Court aligned itself with the CJEU (Tom Kabinet, Nintendo) and found EU law clear enough to dispense with a new preliminary reference.

The direct consequence: for games available only digitally, the exhaustion rule does not apply and terms of use prohibiting the assignment or transfer of accounts remain fully enforceable. Transferring a Steam account or “reselling” downloaded access can therefore be blocked on copyright grounds, without any digital second-hand market being invoked.

For platforms, the framework is strengthened. For consumers, this decision confirms that buying a game online is less about acquiring a good than about obtaining conditional access, whose limits are set… in those famous terms of use that we accept too quickly.

B. Why the software argument is not enough

One might be tempted to say: “a video game is code, so it should follow the same regime as software”. Intuitive… but legally wrong.

A game is not just an executable that runs technical instructions. It is a visual universe, a soundtrack, writing, characters, level design, game mechanics and a complete interactive experience. The code is essential, but it is only the invisible engine of this creation. What really interests the player is not the line of code, but the work it brings to life.

The law makes a very clear distinction between these two realities. The special software regime was designed to protect a technical tool, a program used to perform tasks. The video game, by contrast, has gradually been classified as a “complex work”: an audiovisual and interactive creation that goes far beyond its computing dimension. The courts therefore refuse to treat it as a simple program, as this would mean ignoring most of what is protected.

This solution also relies on the accessory nature of the software component, as established by the CJEU in Tom Kabinet: where the software is merely a tool for access or playback, it remains legally accessory to the principal work, which is protected by ordinary copyright law (CJEU, 19 Dec. 2019, Tom Kabinet, C-263/18, para. 59). In other words, the fact that a video game or an e-book contains code is not enough to bring it under the special regime for computer programs: classification is based on the essential element of the work, and it is that element which determines whether or not the exhaustion rules specific to software apply. The accessory following the principal, it is Directive 2001/29 that governs the whole, to the exclusion of Directive 2009/24 and the intangible exhaustion it allows.

It was precisely on this ground that UFC-Que Choisir brought its appeal, directly challenging this setting aside of the Software Directive. The association argued that “the software of a video game is not accessory” and, by its nature, falls under Directive 2009/24, so that exhaustion of the distribution right should apply, including to a downloaded copy (grounds annexed to the appeal, Cass. 1re civ., 23 Oct. 2024, No. 23-13.738). The reasoning made sense: once one refuses to reduce software to an accessory, the video game falls under the special law on computer programs, which does not distinguish between physical and intangible copies. UFC added that, as far as the second-hand market is concerned, there is no difference between a copy obtained from a physical medium and one downloaded from the internet.

By dismissing the appeal, the Court of Cassation ruled the other way: by subjecting the video game as a whole to Directive 2001/29, it implicitly considered that the software is merely an accessory within the complex work. The solution is settled, but it is not entirely convincing. Reducing software to a mere accessory is not self-evident: without it, no interaction with the work would be possible, and it is precisely what makes video games unique compared with other creations. This accessory status, convenient for justifying the exclusion of the Software Directive, thus tends to gloss over the central role played by the program in the gaming experience.

On top of this methodological reservation comes a substantive one. The classification adopted remains a choice, defensible but debatable. UsedSoft showed this: in the name of effectiveness and free movement, the CJEU was able to treat the mere grant of a perpetual software licence as a “sale”, even if it meant creating the fiction of the transfer of a digital copy. Nothing, in pure logic, required video games to be treated differently. To distinguish them, the Court of Cassation relies heavily on an economic argument: that the digital second-hand market would harm authors more than that for software, an argument whose weakness legal scholars have pointed out. In other words, if the resale of digital games is blocked today, it is not because the law could not have decided otherwise, but because it chose to decide this way.

IV. The consequences for consumers

A. Less freedom than with the physical version

The Valve / UFC-Que Choisir decision does not change everything… but it clarifies one essential point: we do not have the same rights over a digital game as over a boxed game.

When you buy a physical game, in addition to the licence granted to you, you become the owner of a physical medium. You can resell it, lend it or give it away without asking the publisher’s permission: the distribution right is exhausted, and copyright does not prevent this small second-hand market between players.

With digital, it is a different story. You only have a right of access attached to an account, a platform and a licence to use. This access is governed by terms of use that prohibit, in black and white, transferring the account, reselling the library or sharing access beyond what is provided for. Here, it is not only copyright that limits your room for manoeuvre, but also the contract you clicked without reading.

The most misleading part is the vocabulary: we talk about a “purchase”, prices are close to physical ones, sometimes box art is even shown… whereas legally, you only obtain a permission to use that can be revoked under certain conditions. Your digital “library” looks like a collection, but it is a collection whose keys can, in theory, be taken away from you, or which you cannot freely dispose of as transmissible property.

This development also very directly benefits publishers and platforms. By eliminating second-hand resale, digital distribution better secures the revenue generated by each title: every new user has to go back through the official ecosystem, without a secondary market likely to divert part of the sales. Control of the account, access and terms of use thus makes it possible to capture the economic value of the game more durably, while reducing the player’s autonomy over their property.

It is also accompanied by more contested commercial practices. In some cases, the very structure of the game or the pace at which it is introduced may have the effect of delaying the player’s real experience beyond the refund thresholds offered by certain platforms, particularly where an automatic refund is no longer possible after a certain amount of playtime. Even though this question depends on each store’s own policies and is distinct from copyright, it illustrates the same underlying trend: in the digital world, technical and contractual conditions are often designed first to secure the exploitation of the game, before preserving the consumer’s freedom.

Digital distribution therefore does not make ownership disappear; it moves it. We no longer really own games; we depend on closed ecosystems that control access, transfers and sometimes even how long a game remains available. It is convenient day to day, but it raises profound questions about what it still means to “own” a work in the all-digital age.

B. A transparency issue

The real issue with digital video games is not just resale: it is transparency towards the player.

When a platform displays a big “Buy” button, a price aligned with the boxed version and a promise of instant access, all the marketing suggests that one is acquiring a good, like a book or a record. In reality, in most cases, one receives neither a physical copy nor a freely transferable right, but a simple licence to use attached to an account and governed by terms of use. Consumers often discover this nuance afterwards, when they run up against the impossibility of reselling or transferring their “purchase”.

Yet in consumer law, everything is decided when the contract is concluded. If the user believes they are acquiring a good they can freely dispose of, whereas the transaction is in fact a grant of use dependent on a third-party service, their consent is at best imperfectly informed. Fair information therefore requires stating clearly what is being sold: a medium one will own, or a revocable and non-transferable right of access.

This clarity is all the more crucial because the limitations specific to the digital world are many: a non-transferable personal account, terms of use that can be changed unilaterally, dependence on a connection or even on the commercial survival of the platform. Players do not always realise that their “purchase” can be affected by a service shutdown, an account ban or a contractual change. Digital distribution thus creates a persistent gap between public perception and legal reality.

The question is therefore not only “can we resell?”, but “were we honestly informed about what we are really buying?”. As long as the word “buy” masks a mere access authorisation, there will remain a blind spot in consumer protection in the digital video game economy.

Conclusion

In short, if you cannot freely resell a digital video game, it is not a “bug” in the system: it is a direct consequence of how the law classifies it. A downloaded game is not seen as a physical good passing from hand to hand, but as a work made available under licence, attached to an account and governed by terms of use. Whereas a box can change owner, digital access remains under the control of the publisher and the platform.

This choice is not, however, set in stone. While it is final at national level, since the Court of Cassation has ruled, the matter is not closed at EU level: UFC-Que Choisir has referred it to the European Commission, and debates around the Digital Fairness Act could reopen the question.

In this context, Sony’s announcement that it will end physical disc production for new PlayStation games from January 2028 marks a turning point: as the medium disappears, the licence logic becomes the norm, and with it the practical impossibility of organising a genuine digital second-hand market.

Legally, then, the line is clear, even if it is hard for players to accept: the second-hand market has its full place for physical media, but it does not, in principle, extend to purely digital games. Digital distribution does not merely modernise distribution; it profoundly reshapes the nature of the player’s rights, who move from owning an object to a conditional right of access, much more tightly controlled and much less freely transferable.

Sources

Legislation

• French Intellectual Property Code: Art. L. 111-1, L. 111-3, L. 112-2, L. 122-2, L. 122-3, L. 122-4, L. 122-5, L. 122-3-1, L. 122-6, L. 122-6-1, L. 131-3, L. 132-1 et seq., L. 331-5
• French Consumer Code: Art. L. 111-1, L. 111-2, L. 212-1 (unfair terms), L. 221-5
• Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (InfoSoc)
• Directive 2009/24/EC of 23 April 2009 on the legal protection of computer programs
• Directive 2011/83/EU of 25 October 2011 on consumer rights; Directive (EU) 2019/770 of 20 May 2019 on digital content and digital services
• Berne Convention for the Protection of Literary and Artistic Works

Case law

France

• Cass. 1re civ., 25 June 2009, No. 07-20.387, Cryo (distributive classification of video games)
• Paris Judicial Court, 17 Sept. 2019, No. 16/01008, UFC-Que Choisir v. Valve (Steam, first instance)
• Paris Court of Appeal, division 5, chamber 2, 21 Oct. 2022, No. 20/15768, Valve v. UFC-Que Choisir
• Cass. 1re civ., 23 Oct. 2024, No. 23-13.738, UFC-Que Choisir v. Valve Corporation (digital video games, no exhaustion of the distribution right)
• Paris Judicial Court, 7 Nov. 2024, No. 24/02849, Madbox v. Lava Games Development (online video game, copyright)

European Union

• CJEU, 3 July 2012, UsedSoft GmbH v. Oracle International Corp., C-128/11 (second-hand software, digital copies)
• CJEU, 23 Jan. 2014, Nintendo Co. Ltd and Others v. PC Box Srl, C-355/12 (video games, complex work and technological measures)
• CJEU, 22 Jan. 2015, Art & Allposters International BV, C-419/13 (exhaustion and alteration of the medium)
• CJEU, 19 Dec. 2019, Nederlands Uitgeversverbond (NUV) and GAU v. Tom Kabinet Internet BV, C-263/18 (e-books, communication to the public, no exhaustion)

Legal scholarship

• F. Pollaud-Dulian, « La nature complexe du jeu vidéo exclut l’épuisement du droit de distribution par téléchargement », RTD com. 2024, p. 877
• P. Gaudrat, « Revente d’occasion d’un jeu vidéo », RTD com. 2025, p. 73
• V. Varet, « Revente de jeux vidéo dématérialisés : game over ? », Légipresse 2025, p. 91
• J. Groffe-Charrier, « Game over. L’absence d’épuisement du droit de distribution sur l’exemplaire dématérialisé de jeu vidéo confirmée par la Cour de cassation », Dalloz IP/IT 2025, p. 46
• J. Douillard, « Fin de partie pour l’épuisement immatériel du jeu vidéo », comments on Cass. 1re civ., 23 Oct. 2024
• Note on Cass. 1re civ., 23 Oct. 2024, UFC-Que Choisir v. Valve Corporation, Légipresse 2024, p. 597
• A. Lucas-Schloetter, comments on Paris Court of Appeal, 21 Oct. 2022, Valve v. UFC-Que Choisir, Propr. intell. 2023, No. 86, p. 34 and 41
• V. Varet, « La revente d’exemplaires dématérialisés d’œuvres de l’esprit au regard du droit d’auteur », RIDA 2021, p. 5
• J. Lapousterle, comments on CJEU, 19 Dec. 2019, Tom Kabinet, Dalloz IP/IT 2020, p. 250
• C. Marchal, « L’arrêt Tom Kabinet : l’impossible marché de l’occasion numérique ? », D. 2020, p. 471
• G. Brunaux, Le droit du jeu vidéo, Mare & Martin, 2026

Online resources

• European Commission, response to the European citizens’ initiative “Stop Destroying Videogames”, 16 June 2026
• “Physical disc production ending in January 2028 for new games releasing on PlayStation consoles”, PlayStation Blog, 1 July 2026
• M. Rees, « Revente de jeux vidéo dématérialisés : l’UFC-Que Choisir attaque la France devant la Commission européenne », LinkedIn, 25 Feb. 2025
• « Inapplicabilité de l’épuisement des droits d’auteur aux jeux vidéo dématérialisés », Next, 8 Apr. 2025
• « Droit d’auteur et jeux vidéo dématérialisés : game over pour l’épuisement des droits », Solvoxia Avocats, 7 Nov. 2024
• « Les jeux vidéo en ligne ne peuvent être revendus d’occasion », Gouache Avocats, 29 May 2025
• « Game over pour la revente de jeux vidéo dématérialisés », Le Club des juristes, 15 Apr. 2025

BGBaptiste GODINMaster's student in digital law

https://lexludica.com/en/articles/you-do-not-own-your-video-games