Navigating early access: legal and practical considerations
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
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 the current state of your game. Players will need to be forewarned that the game will contain bugs, and should be encouraged to provide feedback.
There may additionally be specific branding guidelines to comply with when marking your game as early access. Again taking Steam as an example, its Branding Guidelines set out logos and text that must be included when selling Steam keys for any early access title.
And, to drive home the above message regarding consumer laws, Steam also states: "We work hard to make sure that customers understand what they are buying when they get an Early Access title on Steam. We feel it is equally important that customers buying Steam Early Access titles in other places also understand what they are getting."
3. Satisfactory and fit for purpose: Keep it playable
TL;DR: Any contract to purchase your game will include a promise that it is of satisfactory quality and fit for the core purpose of playing it. So even though it’s in early access, the game must still be at a sufficiently playable stage of development.
Having dealt with limb (i) of the above key tenets (a product must be "as described"), limbs (ii) and (iii) still need some attention: the title must still be "of satisfactory quality" and "fit for a particular purpose."
Every purchase of a game, early access or otherwise, will be subject to the terms of a contract. This contract will often take the form of the game’s End-User Licence Agreement (the "EULA") and/or a platform’s terms which consumers will agree to upon purchase. This contract will tend to include express provisions that the title will be of satisfactory quality and fit for purpose.
Even if there are no such express terms, these provisions will be implied into the contract by virtue of the Consumer Rights Act 2015.
Any contract to purchase your game will include a promise that it is fit for the core purpose of playing it. Even in early access, the game must still be at a sufficiently playable stage of development
To paraphrase the legislation itself:
- "Every contract to supply goods [or digital content] is to be treated as including a term that the quality of the goods [or digital content] is satisfactory"
- "The contract is to be treated as including a term that the goods [or digital content] are reasonably fit for that purpose" (i.e. the purpose of playing the game)
Consumers are still paying money (albeit at a reduced rate) to play your game and so, regardless of the caveats and warnings provided at the time of purchase, the game must still be in some way playable, as also made clear by Steam in its early access terms.
You will of course want to avoid any situation in which purchasers of your game are claiming that you have breached an express or implied contractual term by selling them a product that does not work as it should.
Development does not need to be in final stages by the time you launch in early access, and bugs and defects are to be expected. However, the game should not be in such early stages of development that there is insufficient gameplay to be able to deliver a viable game to the customer.
Simply put, there needs to be some sort of playable game, not least as that is the bare minimum that players are expecting.
4. Communication and community
TL;DR: Community engagement and feedback is good, and to be encouraged, however studios should be careful to avoid over-promising. In particular, avoid any promises regarding full launch until you’re certain there will be one.
Community engagement and feedback is an essential component of the early access process. Just look at Redbeet Interactive's Raft and its community-fuelled journey from Itch.io prototype in 2016, to early access release in 2018, culminating in an enormously well-received version 1.0 launch in June.
When it comes to communicating, particularly [about] plans regarding launch, studios should be careful not to overpromise
Even before early access, community engagement was an integral aspect of the game’s development process and feedback from this dedicated community undoubtedly would have been a key driver in Raft’s evolution.
When it comes to communicating with your community, particularly with respect to any plans regarding final launch, studios should be careful not to over-promise. It is generally advisable to avoid any statements confirming when the title will be finished, or indeed whether it will be finished at all.
Take a cue from Raft: by all means provide updates on development and new chapters for players to look forward to, but avoid any statements as to a final version 1.0 launch until you are certain that it is going ahead.
There is always the possibility that the game will ultimately not make it to full launch, and so you should ensure that potential purchasers are aware of this risk when buying the game. It’s important to not over-promise with the excitement of early access release and then be left picking up the pieces later.
5. Managing expectations: A cautionary tale
The end of last year offered a fitting cautionary tale on the management of consumer expectations, following CD Projekt Red’s tussle with shareholders in the wake of Cyberpunk 2077’s fraught launch (the class-action lawsuit that culminated in a $1.85 million settlement by CD Projekt).
Clear messaging and management of consumer expectations should be front of mind
Had CD Projekt delayed full launch of Cyberpunk 2077 and instead released as early access, with all the caveats and health warnings that one would expect, then glitches and errors would be par for the course and the company would not have spent so much of the past year contending with disgruntled consumers and public lawsuits.
By contrast, 1047 Games decided that full launch of Splitgate, which released in early access back in 2017, would be delayed in favour of extending its decidedly successful open beta. This decision was swiftly rewarded with an injection of $100 million for the company from investors.
Naturally, the discussion around early access vs traditional release is more nuanced than these two examples would suggest. Yet regardless of which route studios opt for, clear messaging and management of consumer expectations should be front of mind when looking to mitigate the risks of falling foul of consumer laws.
Even if, or perhaps especially if, releasing in early access: communication is key.
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Anna Poulter-Jones is a games lawyer based in London at media and technology law firm Sheridans. She advises clients across the games industry on a variety of commercial and intellectual property matters