Navigating early access: legal and practical considerations

Legal Lawyer Anna Poulter-Jones provides a roadmap through the various regulatory and contractual issues studios will meet when soft launching their games In recent years we have seen a number of studios continuing to eschew traditional launch in favour of early access: Baldur’s Gate 3 and Valheim were some of last year’s strongest titles, neither of which have yet seen a full launch. An iterative release through early access is of course nothing new (think Minecraft circa 2009), and the benefits are undoubtedly appealing: developers can soft launch their game and test its viability directly with their target audience, all the while building a community and generating revenue for ongoing development. However, what are the legal and practical considerations to launching in early access? And to what extent will developers/publishers’ obligations regarding their beta title differ compared to a version 1.0? Table of contents: 1. Consumer rights 101 2. As described: “Early access” loud and clear 3. Satisfactory and fit for purpose: Keep it playable 4. Communication and community 5. Managing expectations: A cautionary tale 1. Consumer rights 101 Importantly, while your game may only be in alpha or beta state, this does not absolve you from your obligation to satisfy consumer laws: you still cannot just put out anything no matter how full of bugs. By “consumer laws” we refer to legislation (notably the Consumer Rights Act 2015) that provides protection to purchasers of goods, services and digital content against all manner of issues that may arise through purchase, such as fraud or mis-selling. In essence, goods and digital content must be: (i) as described (ii) of satisfactory quality (iii) fit for purpose. 2. As described: “Early access” loud and clear TL;DR: Give potential players plenty of warning that this game is in early access and may contain bugs. And don’t forget to comply with any platform branding guidelines when signposting this. With respect to games, this means that, firstly, players will need to know what to expect from the title before they make any payment. This also means that players would be entitled to a full refund for any faulty goods that they purchase, digital or otherwise. This is the bare minimum that players are entitled to, and platforms will often be even more permissive with respect to returns. The Steam Returns Policy, for example, states: “You can request a refund for nearly any purchase on Steam — for any reason. Maybe your PC doesn’t meet the hardware requirements; maybe you bought a game by mistake; maybe you played the title for an hour and just didn’t like it.” Give potential players plenty of warning that this game is in early access and may contain bugs Most importantly, therefore, the game must be what you say it is, regardless of whether you are actively marketing it or not. You must be transparent with purchasers that the title is, for example, available as an open beta, with clear information on
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