By Lewie Procter on August 19th, 2011 at 2:40 pm.
On Wednesday, we reported that Square-Enix had decided to region lock the physical PC release of Deus Ex: Human Revolution, within Europe. Then yesterday, they issued a statement saying that they had decided not to go ahead with the region locking. But what does it all mean? We knew that we didn’t like region locking and other artificial barriers between gamers and their games, but we hadn’t got a clue about the legalities of them. Luckily we know a man who does. Games lawyer Jas Purewal took time out of his busy day games-lawyering to give us his appraisal of the legal lay of the land with regard to region locking of the stuff that you buy. Here’s his expert opinion:
RPS: Square Enix had initially planned to region lock the physical PC release of Deus Ex Human Revolution within the EU. Lots of questions were asked about the whether this would have been in breach of EU trade law, what’s your take on that?
Purewal: Geographical locking of content in any format (e.g. DVD or digital) is legally uncertain at best. On the one hand, the publisher could potentially have a variety of legitimate reasons for wanting to geographically lock content, such as local classification/ratings laws (e.g. which could require different versions of a game or DVD for different countries) or for anti-piracy. On the other hand, imposing a geographical lock purely for commercial gain (i.e. to maintain artificial price differentials in different countries) remains controversial and could potentially fall foul of competition laws. However, to my knowledge this has not yet been tested in any of the major markets including the US or the EU, hence the legal uncertainty.
As far as Deus Ex Human Revolution is concerned, if the region lock had gone ahead then the legal test would have focused on the exact reasons why it had been put in place.
RPS: What kind of consequences could a publisher found guilty of region locking for commercial gain face?
Purewal: If a publisher was found to have engaged in anti-competitive activity (for example, by illegal price fixing) the consequences would vary from country to country and would depend on the seriousness of the activity. Generally though, it could mean: substantial fines, consumer lawsuits, bans on similar activities in the future or, in extreme cases, potentially even criminal investigation in some countries.
RPS: In the future, what course of action would you suggest to gamers wanting to import games from within the EU, but are confronted with region locking?
Unfortunately in practice there aren’t many legal options for gamers who want to play region-locked imported games (a hack or other workaround is an option but that clearly would be illegal). Gamers can of course still register their dissatisfaction in a range of ways, from contacting the publisher/digital distribution platform to just not buying the game or even (in the worst case scenario) contacting their local consumer protection body.
RPS: Would workarounds really be illegal? Some people had plans to use a VPN to spoof a UK IP address to be able to activate UK imported copies of Deus Ex…
Purewal: Tech workarounds, however well intentioned, can themselves cause legal issues worse than the one you are trying to avoid in the first place. For example, spoofing an IP address could cause legal difficulties with your ISP, the games publisher and potentially others involved in the game (e.g. Steam or other digital distribution platforms). So as a matter of law tech workarounds carry real risks, although clearly different people will have different views as to how important that really is to them.
RPS: Thanks for your time
You can read about Jas’ ongoing adventures in the world of video game law over at Gamer/Law.