Steam users in France should be allowed to resell their games according to French court ruling

    
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The Union fédérale des consommateurs (Federal Union of Consumers or UFC Que Choisir), a French consumer group, has been pursuing litigation against Valve over several clauses in the Steam Subscriber Agreement to determine if purchasing games on the platform means users should be allowed to resell those games under EU law. Yesterday, the District Court of Paris passed down a ruling in favor of the consumer group.

According to a report from the French website Next Inpact, Valve’s argument that purchasing games on Steam was actually the purchase of a subscription to use products or services on the platform did not hold up to legal scrutiny. The court found that purchasing games on Steam is more like purchasing a digital license. This means these games can be resold by Steam users under EU law, which allows for “the free movement of goods within the Union” without requiring the permission of the person who originally sold them.

Valve had also asserted multiple rights in regard to Steam, such as the right not to reimburse Steam Wallet funds if users left the platform and the right to avoid responsibility if users incurred harm on the platform, but the court ruled against all of those claims. In total, fourteen of Valve’s clauses were struck down by the court.

The win ends a years-long fight from the UFC Que Choisir against Valve and could also set a precedent ruling for other EU member nations to follow, though Valve has already stated its intention to keep fighting. “We disagree with the decision of the Paris Court of First Instance and will appeal it,” reads an emailed statement sent to Polygon. “The decision will have no effect on Steam while the case is on appeal.”

This is not the first time that Steam has lost a legal case outside of the US. Readers will note that Valve had to cough up fines to France in September of 2018 as well as pay fines to Australia in April of that same year.

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Anstalt

I know very little about the law, but from reading about this story it still kind of seems like Valve doesn’t need to worry too much.

The ruling states that we own the license to play the game. It says nothing about Valve having to implement a second hand market, process payments between users or even that they would need to continue to distribute the game to the new owner.

So, could Valve just implement a simple feature that lets users export their license and then disconnects that license from the users account? The user would then be responsible for selling the license, and the new owner would have to figure out how to get hold of the actual game? Valve could easily implement a policy of only allowing a license to be registered on their platform once – essentially, buy from us (or approved retailers) and you get the benefits of using our platform, buy from someone else and you don’t.

That said, none of this will affect me. I never sell second hand games, I like keeping a library because I’ll often go back to old games years into the future.

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Robert Mann

There’s three potential fallouts from this, and one almost guaranteed fallout:

The first would be, that like many other big digital companies Steam will decide in the long run that the EU just isn’t worth it. It’s not that uncommon for companies that don’t want to deal with all that to just avoid them, and focus on other locations. It’s not a great solution for anyone involved… so more likely in this case one of the other options will be chosen.

The second is to simply agree to charge more with developers for the EU. Since the EU courts already expect a flat rate in the EU, there’s nothing really to stop this, except an overall price/purchase ratio drop that is less attractive than the resale issue. The more that is charged up front, the less the resales hurt (so long as numbers on that first purchase actually stay close to the mark).

The third is that developers will simply put additional requirements in place, so long as they are not in the EU. Most nations will in turn look at these laws, and ask what the EU is going to do for them in turn if the EU wants to pursue those developers. It’s not like international laws are exactly strictly enforced to begin with.

Finally, the 100% guaranteed fallout will be in “Sales!” Kiss your cheaper game prices goodbye, they aren’t going to drop them in a sale when they know you are going to see a bunch of people buy to resell post sale. Duh!

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xanadox

First point, it is hard to believe that Steam / Sony/ Microsoft / Nintendo / EA/ Blizzard will not sell their products in the EU. Btw, EU =more than 500 million people. That’s the force of the union in the defense of individual rights. Some enterprises will say no to Netherlands, or even France; but the whole EU, it’s hard to believe.

Second point, as you mention, asking for more money will decrease the quantity sold.

Third point, the justice courts can be slow, but they are not powerless. Ignoring or looking for some ways to avoid a legit justice decision (EULAs, accounts, subs,…) will just make the problem worse.

Finally, sales have been the main resource for game codes, along with region pricing. There is nothing new there (https://www.technobuffalo.com/steam-restricts-gifting-and-reemeding-games-in-foreign-countries) . Furthermore, you are saying that developers will sell more on sales . Good for them!.

Publishers should look for the opportunity, not the problem. If a game travels from one library to another, it’s more likely they are gonna find someone interested in the game, who may buy more content for the game.

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Robert Mann

Simply put, I highly doubt that Steam or other distributors, much less publishers, are going to just say “Yeah, sure, and we won’t do anything to get some of the income back.” Where they are unlikely to avoid the market (as it doesn’t cost much when the product is already developed) I expect the measure of taking other actions until that becomes the issue, then sharply increased prices for the EU with region locks to the EU. They will not hold sales (or very good sales at least) in the EU, because losing money to the resale later is just moronic. They may limit the number that an account can purchase. ETC.

Worse, the people hurt the most by this are the little studios. The big studios might eat costs… but you are saying goodbye to any innovation in games in the EU with this. Because, to be blunt, the big studios don’t innovate. They might have gotten big from doing so, but once big they are risk adverse.

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rafael12104

Oh my. This is going to be fun. So, what do you want to bet that Steam lawyers are huddled in a room somewhere with Gabe eating pizza rolls and hoping nobody is watching. Heh.

For years I’ve bought into digital EULAs treating consumers as if a game bought and paid for wasn’t theirs. Wrapped up in well crafted and vague verbiage, it didn’t seem to matter much as long as I got to play. Scroll, scroll, scroll, click the “I agree” checkbox and done and dusted.

Hmm. But what if those EULAs were wrong. They were, in a sense, illegal and the games I bought on Steam were really mine? Oh babydoll, that is delicious. I could open my own pre-owned game virtual kiosk! Lol.

Nah. I’m a horder, I won’t part with old games. But I would like to be able to move my bits around where ever I like and play them sans Steam. That would be nice.

Net-net here. It will take a long time, but Steam may become a sub-service just like the various others. I think that is the way things will shake out. But not before there is a massive death roll for the old business model including lawsuits, Reddit shenanigans, and industry-wide introspection.

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xanadox

Some comments:

> To resell the game you have to buy it.
> More people will be interested in buying games the first day if they know they could resell them.
> If you buy something for 60 dollars, you would like to resell it for 59 dollars; not 1 cent.
> There’s nothing said about the cost of the process. Steam could get a % (even the publisher).
> This comes from the equivalence of digital goods with real goods. You can expect this to be applied to all digital things.
> If anyone tries to bypass the law (account, subscriptions,…), it will be worse.
> If a developer fears that his game will have no appeal to even keep it in your library for 1 month; then it would be better to rethink the game.

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Utakata

So from what I gather, Mr. Newell just ran into an anti-monopoly wall. Good! Though it appears he doesn’t seem to be learning from that lesson. /sigh

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Schmidt.Capela

Nothing to do with anti-monopoly actions; people target Steam for this kind of lawsuit because it’s the largest and most visible of the digital stores. Thanks to that a victory against Steam might compel the other stores to change without the need to sue them too.

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Utakata

I assume it was their idea to limit the competition by withholding the licensing rights of games that use their Steam services, was it not? I could be wrong…but that’s how I am reading it. That is, while maybe not a monopoly per say, but something close to that that gives Valve the unfair advantage.

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Arktouros

It has nothing to do with unfair advantages or monopolies.

Valve was arguing that you (the consumer) didn’t really purchase your software on Steam, you’re just renting it from them. This means you don’t own anything on your Steam account. Because you don’t own anything, you don’t have the rights to resell anything. The court ruled instead that such transactions were more like digital license purchases, which you (the consumer) have the right to resell.

This ruling is important because it will have huge shockwaves in all digital storefronts, not just Valve, within France/EU, as they all now have to provide a means in which consumers can resell any games they purchase/sell.

This also brings up the topic of reselling games again, something which has largely gone away with the move towards digital sales. Most game companies are adamantly opposed towards reselling games because it ultimately cuts into their bottom line (IE: Instead of getting new sales people will just wait till a game is resold and the game developer gets no cut in that resale). This puts strain on what is already a tenuous situation when it comes to game business models and games.

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Utakata

But that doesn’t really answer my original observation though. That is, at some point it’s been deemed that Valve was getting an unfair advantage over their policy. And that exercise has been deemed wanting by the law.

Either way though, it’s seems a good thing this was a watershed moment in the industry.

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Arnold Hendrick

As a game developer myself, I am one year into a multi-year game development project. I had originally planned to use a “buy to play” business model, like the vast majority of games on Steam (and similar platforms). I wanted to provide an excellent game at a reasonable price.

I know from past experience (I’ve been making computer games for 35+ years now) that the more robust the “pre-owned” games market, the lower the sales of “new” games. My guess is that any large e-distribution company (Valve, Epic, Microsoft, Apple, Google, etc.) doing resale-and-transfer will not be passing on any percentages of the “service charge” to the original developer.

Remaking this game into a subscription product is not possible. To make it attractive as a subscription product, I need to invest WAY more resources in development. I do not have these resources, and don’t expect to find them.

It is barely possible to remark the game into a F2P product with an aggressive cash shop (with unlocks, lock-boxes, special services, vanity items, etc.). However, none of us on the dev team like those kind of games, and I don’t expect many customers will enjoy it either. Games with big licenses and big marketing budgets may want that – but I’m not developing products for EA, Activision, Zynga, etc.

Instead, I make traditional computer games for people who like being surprised by a game with an unusual setting and many interesting choices. It’s very old school to think that way. Unfortunately, legal decisions like this make the sales and profit side of the equation look less attractive to new product developers.

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Arktouros

Couldn’t you just do an account based system? So you sell the game for B2P, then the person has to sign into their “” account. Then it moves them into the game to be played. With the account the game doesn’t work. If they sell their game on whatever platform you released it, just ban that account.

I’m sure some of the details there would have to change, and some of the tech angle might push things elsewhere, but seems like that would circumvent the scenario since your company owns the account even if the player owns the software they use to access the account.

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Syran

That’s one of the fastest ways to piss off your players though. Unless you’re looking for a wall of social media abuse, death threats or boycott campaigns, you’re better off just going with the flow.

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Arktouros

That really depends on the implementation and game model though. There are many games that require online sign ins currently for example.

Also the threat of a “wall of social media abuse” is pretty meaningless in a age where you’re going to get that regardless of what actions you take. There’s too many people involved to not have one set or group of people who will be upset with the actions you take regardless what those are.

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Arktouros

This seems like one of those “0be careful what you wish for” that are very common in gaming monetization related scenarios.

People seem to have this absurd idea that they can use regulation to force companies to behave or act in a particular way. That isn’t how things work. You can certainly pass legislation and regulation but you can’t determine how companies will react to it. Companies don’t say, “Oh gee whiz guys we’re so sorry we’ll be less profit focused in the future and we’ll go back to the way things were back when you liked them.”

As others have noted below this kind of thing could just as easily encourage game developers to shift towards an access style model where you have no inherent rights to the software you “purchased.” Alternatively it could push businesses to go towards a game access subscription model where again you also don’t actually own anything.

Ya’ll gonna learn if you force things to change they aren’t guaranteed to change for the better.

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Schmidt.Capela

If I understood the ruling correctly, they would need to move away from the B2P model altogether in order to escape the ruling, and this in an environment where certain aspects of F2P are already under siege.

Besides, even F2P might not be safe from the ruling, because by using the “duck test” to assess the similarities between certain microtransactions and actual sales you can construct a credible argument for allowing the resale of most microtransactions (Which, incidentally, would play havoc on lootboxes, as being forced to allow the resale of their contents would land them squarely into gambling territory).

So, basically, if you want to escape this ruling, there’s a good chance the only feasible way will be to offer the game only as a subscription service.

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Arktouros

That really depends on the B2P product you’re buying. For example most MMO games will sell you the game client up front, which you could resell, but the account associated with it can not be sold by the rules in which users agree to by the service. Those same rules that state the account can be terminated at any time for any reason. It wouldn’t be far fetched to see a scenario where you can sell the software of the game, per the law, and in response the game system automatically bans your old account as a result. The new person can then install the game software they purchased second hand, but have no access to the servers in which to play the game.

Microtransactions in the context of this ruling are certainly interesting. However again this also becomes part of that “be careful what you wish for” scenario because it basically legalizes RMT within gaming in the EU. It will also create a huge amount of nightmarish headaches for game developers in those countries because of friendly fraud (something any game developer with a cash shop will tell you eats up a extraordinary amount of their time). For example Black Desert completely shut down cash shop gifting because of the sheer volume of friendly fraud going on with RMT resellers.

Again you’re not cynical enough to see the reality of the options presented in this scenario. There’s also the option of just not releasing games within the EU. You will argue that it would be a huge financial blow to them to not do so but at the same time I would counter argue that if they’re unable to meet their sales goals because of the resale market it isn’t worth the time/money (localizing multiple languages, fighting off friendly fraud, etc) to dedicate towards releasing it there.

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Schmidt.Capela

For example most MMO games will sell you the game client up front, which you could resell, but the account associated with it can not be sold by the rules in which users agree to by the service.

This might work for MMOs. Or might not. A core aspect of both this ruling and the 2012 one that made selling used software legal across the whole of Europe is that user agreements aren’t binding if, or when, they go against the law. So, trying to put language in a license agreement to avoid the ruling might not just be useless, but even result in fines.

B2P MMOs are a corner case, because it’s both a product purchase and an actual service rolled into one. But given the way the ruling found that games sold through Steam, and thus tied to Steam accounts and services, qualify as actual products for which the right to resell without the consent of the original seller is guaranteed by EU law, I wouldn’t be surprised if this ruling was extended to also included those.

However again this also becomes part of that “be careful what you wish for” scenario because it basically legalizes RMT within gaming in the EU.

Not that part of the ruling, though; Assuming the argument does fly, the resale provisions would only affect things that can be purchased for real money in the first place. So you would be able to resell things like premium mounts or housing (or the contents of lootboxes) purchased with real money, but not things that are obtained in-game with no money involved.

On the other hand, the ruling also declares that Steam users have the right to receive left over Steam Wallet funds as cold, hard cash. Which might prove more trouble, at least at first, for MMO publishers; they might be forced to allow users to cash out on currencies that can be purchased with real money, like GW2 Gems.

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Arktouros

But again there’s nothing in license agreement that you can’t resell the software. Resell the software as much as you want and that’s compliant with the law. You just can’t access the game without having an account and an account requires a unique key activation.

This also covers the Steam scenario where you can certainly sell any digital products you’ve purchased within the Steam Storefront but access to the game services and servers via an account sign in is not even remotely addressed by this ruling.

The part you’re forgetting about RMT is that there are many games where currencies are linked. For example you brought up GW2, the ability to convert gold to gems allows for the ability for people to purchase those goods and then resell them. Also completely unaddressed is the point with RMT is the individuals who make fraudulent purchases with stolen credit cards and then resell those goods for cheaper to other users. Nevermind the simple scenario of paying $X for those premium digital goods and then sell them for in game gold with the devs unable to stop me because I have the right to resell my purchases.

Again, as usual, people don’t fully think about the full ramifications of what they’re asking for.

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Schmidt.Capela

This also covers the Steam scenario where you can certainly sell any digital products you’ve purchased within the Steam Storefront but access to the game services and servers via an account sign in is not even remotely addressed by this ruling.

Actually, yeah, the ruling does touch on this by requiring Steam to clearly identify the situations that can result in an account being banned. I suspect any attempt to link account bans to the lawful resale of games will result in fines.

Also, exploiting the letter of the ruling like this in order to twist its intent will always piss off the judge and can result in even worse punishments down the line; it is, after all, a willful violation of an explicit court order.

The part you’re forgetting about RMT is that there are many games where currencies are linked.

Nope, I’m perfectly aware of that. And if that order requiring Valve to allow customers to cash out the money on their Steam wallets is extended to other secondary currencies that can be acquired with money, keeping those currencies linked with in-game gold will be an extra headache for the publishers. Not much different than the situation with Steam, BTW, because one of the ways to obtain Steam Wallet money is to obtain items in-game and sell them in the Steam marketplace.

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Arktouros

That’s Steam account bans, not game account bans. They are two different things. Like you can have your ESO account banned even you still have ESO via Steam. ESO account can be banned for literally any reason and would require additional court rulings to prevent that. Of course then going after that will be like a nuclear bomb given the number of industries based on services/accounts.

Companies have always exactingly followed the letter of laws. We saw this with loot boxes where Steam just made it so Netherlands people can’t trade the goods they get out of loot boxes to comply with their law.

Yes I already covered that. It functionally will legalize RMT through that and the other examples you didn’t address.

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Jack Pipsam

Steam only brought in their refund policy after the Australian Consumer Law got’em haha.
I’ll be interested to see where this French ruling ends up if they lose the appeal.

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rafael12104

After lots of lawyers and consternation, steam will buckle. They may turn into a subscription service though. That’s possible.

Either way, digital sales are dominant. That won’t change so Steam will have to change and maybe the industry will have to change.

Random MMO fan
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Random MMO fan

Good! Screw greedy GabeN and the rest of digital distributors. If I can buy game on disk for my PS4 and then resell it later – I should be also allowed to do this without disk.

And for narrow-minded idiots who blindly believe “this will kill off game developers”: no, it will not. First of all, they can always increase the prices (which I am not opposed to paying if the product is good – I bought several versions of Witcher 3 copies for myself and for others). Second of all, they can always choose a digital store which would share the profit more fairly with developers (meaning “not Steam”). Third of all, they can outsource development of most of the game to countries which do not force companies to unjustly provide excessive benefits to employees (meaning “not USA”) to save a huge amount on development costs. Last, but most importantly – they can make better games which will sell well and which will compel people to buy new and not used.

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Mark Jacobs

The issue of what to do about used games has been one that I’ve debated for years as I’m both a consumer and game developer. This is actually one of the many reasons I support subscription games and a EUALA (End User ACCESS & License Agreement) as opposed to an EULA (End User License Agreement). While these types of decisions don’t mean the end of client game sales, it is also not unexpected, and it will hurt the game industry in the short term. This is one of the reasons, I suspect, that folks like MS/Google/etc. are interested in streaming games. If you are only buying access to the game, you have nothing to resell, you never bought the original game. This would be a winning argument because of what is going on with streaming content for TV. If you paid for Game of Thrones and then cancelled your subscription, you wouldn’t win a lawsuit against HBO for denying you access to the content you watched/paid for when you were a subscriber. This way of doing business is accepted here and across the pond as well. It’s also one of the reasons, as noted below, that a lot of publishers are interested in FTP games, though I assume the same reasoning as per above/below would apply to stuff you bought in the game.

Brave new world and all that.

And I did and still prefer the old-school way but that’s not a surprise to anybody here.

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Schmidt.Capela

It would need to be one heck of a deal to get me into it. Something like $15 per month to access a library of thousands of games, including AAA games released just a few months ago. And, incidentally, it would sharply reduce how much I spend on games, just like Netflix made me almost completely stop purchasing DVDs and thus sharply reduced how much I spend on movies.

Otherwise, no chance at all I would ever get on board. If I’m not going to actually own my games, then I want a huge discount over what I would have otherwise paid for them, meaning I will give the industry just a small fraction of what I previously spent.

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Arktouros

The majority of people don’t have the same level of fanatical zeal you state when it comes to what you find acceptable. They don’t need everyone to get on board. They need to get the majority of people on board.

It’s like the guys who sit there and swore up and down the board that they will refuse to buy X game because of Y. On Diablo 3 doesn’t have an offline mode, they refuse to buy that game. Still one of the top 20 sold games of all time. I refuse to play Borderlands 3 despite being a huge Borderlands fan because of the Epic Game Store and they’re going to still sell a bojillion copies regardless.

If you were running a business and some random person who isn’t your customer and has flat out stated they refuse to be your customer unless you meet this specific criteria why would you listen to that person when there’s thousands or millions actual customers to listen to instead?

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Mark Jacobs

SC, as to the whole “I will give the industry…” bit is why I’m not a fan of these types of “All you can eat” services. I lived through the issues when AOL did that, then Kesmai, then Interplay, etc. It’s why I still believe in the buy to play model. The argument I always make is that the economics don’t scale well, Netflix is a perfect example of that. They earn a lot of revenue, but their profit margin sucks and they keep having to raise more money to develop IP. I’ve always argued that isn’t sustainable forever and that I think about building out a huge library which they can eventually sell and clean up then.

The issue of reselling is a tough one, which is why I’m of mixed mind on it. If anybody told us that you couldn’t resell your car because it would hurt GM, the vast majority of people would get out the pitchforks and tar and feathers. OTOH, some folks, including developers, say that you shouldn’t be allowed to do so.

When I was at EA this point came up a number of times. My argument was always that if we made our games with more, not less, replayability that fewer people would quickly resell the games. To quote the play Hamilton, they “…looked at me like I was stupid.” :)

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Schmidt.Capela

I wonder how much the used games market hindered sales back when digital distribution didn’t exist. I suspect it had a much smaller influence than the big publishers say, and that it — like piracy — was propped up into the role of a big threat to the industry in order to justify lower than expected sales.

I suspect the real effect of both is similar: a shift in sales from marketing-driven, not-so-good games towards good games with smaller marketing budgets, with the total amount spent on games remaining roughly the same. Which is bad for big publishers that rely heavily on marketing to move their products, mind, but not for the industry as a whole.

BTW, I really agree with you on the replayability angle. I’m never going to sell one of my used games if I still enjoy firing it and playing from time to time, and I suspect many people have a similar point of view.

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Robert Mann

It had quite a large effect, actually. The resale of old games, combined with a number of other aspects, was part of the 1983 crash.

Second, where you are correct that higher quality games would help everyone, the truth is more that the marketing will get cut, prices will rise, and it’ll still be the same otherwise.

There’s benefit to replayability, but it also isn’t infinite. Given the issues facing smaller developers especially, the most likely result is simply that B2P will be fully dead and people will have to deal with the F2P monetization hell or pay a sub… or that the initial price will be far higher, especially for games that are less focused on random stuff and PvP (at least in the EU). Sadly, the more that a single player game focuses on the replay aspect, the less it tends to be a coherent story that is high quality.

All in all, there are both pros and cons to the idea here, but I fear that people are cheering what will amount to a reduction in their ability to enjoy games at a reasonable cost. Because the more this is an issue to the companies, the higher the cost to buy in, the more likely the scammy F2P and subs become, and the less ability we have to simply buy and play something as we wish.

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Syran

Your last paragraph is one of my main issues with the discussions on this topic. Playtime or replayability is not necessarily a measure of quality. Both as a developer and a player, I prefer narrative single-player games that I finish in a week or two. Making that kind of game is getting less and less viable, and that just stinks. :(

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Robert Mann

Sadly correct that they suffer the most from the issue of “Replayability” as a requisite feature. Simply put, they are fun to play through every once in a while, but the RNG aspect of the replayability is hard to do well in such a title.

oldandgrumpy
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oldandgrumpy

Origin Basic and Prime Access, Uplay+

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Schmidt.Capela

For non-MMO games it would need to be a service with a catalog at least the size of GOG’s to have a chance of seeing me subscribe to it. Origin and Uplay don’t even come close, so I don’t see their subscription services as being even close to a good deal, and that without taking into account the reasons why I don’t purchase anything from them in the first place.

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xanadox

You don’t have to subscribe all services, every month.
You can change the sub every month.
Most likely, there would be a guild meeting every month to select the ‘sub of the month’. So you can get “Something like $15 per month to access a library of thousands of games, including AAA games released just a few months ago.”
How many games do you play at the same time?