Press “Start” to Agree: The Digital Shift Ending Video Game Ownership

Introduction

On launch day of the long-anticipated Nintendo Switch 2, eager fans lined up to buy the newest portable gaming console and brand-new games to go along with it. Some opted for “physical” copies of new releases—boxed, shrink-wrapped, and $10 more expensive than their digital counterparts.[1] But some discovered a surprise after opening the case: no cartridge, no actual game card, no tangible software inside. Just a download code.[2]

For decades, buying a video game meant owning something concrete. From the sturdy cartridges of the Nintendo 64 to the glossy discs of the PlayStation 2, consumers could lend games to friends, resell them, or display them on a shelf alongside other collector’s items.[3] Throughout the various iterations of gaming consoles, video game ownership operated much like any other personal property transaction: Once purchased, the item belonged to the buyer.[4]

Today, that model is fading. The video game industry—led in highly visible ways by Nintendo—has shifted. Instead of selling copies of games to buyers, many companies have chosen to license access to software.[5] Consumers no longer purchase games in the traditional sense; they acquire limited, revocable rights to use digital content.[6] This shift has consequences for consumer rights, secondary markets, and long-term access to cultural works. Nintendo’s move toward digital-only distribution, reinforced by End User License Agreements (“EULAs”) and highlighted by server shutdowns and de-listings, reveals modern “ownership” of video games is becoming illusory. Buttons labeled “Buy Now” on digital storefronts are increasingly considered a form of deceptive marketing.[7] When you “purchase” a digital game today, you don’t acquire a piece of property: You enter into a license granting temporary access at the publisher’s discretion.[8] This shift from ownership to licensing is altering the entertainment industry, turning what once were permanent assets into terminable services.

The Legal Background: EULAs and the First-Sale Doctrine

Behind this transformation is the EULA, a contract defining the scope of permissible use.[9] Nearly all modern gaming EULAs specify that the user receives a limited, non-transferable, revocable license rather than ownership of the software. Courts generally enforce these as binding contracts, particularly when users must click “I Agree”.[10]

Additionally, the First-Sale Doctrine historically permitted the owner of a physical work to resell or lend it without the copyright holder’s permission.[11] But this doctrine requires lawful ownership of a “particular copy”—a standard digital downloads rarely meet.[12] Following the test in Vernor v. Autodesk, courts generally uphold EULAs as binding contracts if the publisher specifies a license is granted, significantly restricts transfer rights, and imposes notable use restrictions.[13] Digital media is effectively exempted from the first-sale doctrine because the consumer is characterized as a “licensee” rather than an “owner.”

Digital storefronts transformed the economic model for video games.[14] Instead of exchanging money for a physical game, publishers began distributing digital files tied to user accounts.[15] This model has huge economic appeal for companies because digital distribution reduces manufacturing costs, eliminates the resell market, and allows publishers ongoing access controls.[16] The practical result is straightforward: If a transaction is structured as a license, the publisher retains ownership of the copy.[17] Consumers cannot resell digital games like they would have been able to with a disc or cartridge, nor can they claim a right to continued server support.[18]

The Nintendo Switch 2 and the “Game Key”

The launch of the Nintendo Switch 2 has become a lightning rod for this debate. The company has long been a champion of physical media, but the Switch 2 era complicated the definition of a “physical copy.” While Nintendo has stated many of its own titles will still contain full game data on physical cartridges, the story is different for third-party partners.[19]

A significant portion of third-party releases for the new console are utilizing “Game-Key Cards,” which are physical boxes containing a digital activation key to download the software from servers, not actual game data.[20] In these instances, the consumer pays for packaging and a redeemable key. But without access to Nintendo’s servers, the “physical copy” is functionally useless.[21] If Nintendo or a third-party publisher discontinues support for a game or shuts down its servers, the purchaser could lose meaningful access entirely. Consumers often perceive these purchases as equivalent to buying cartridges of earlier eras. But a traditional cartridge functions independently, free of a publisher’s continued involvement; a download code or game-key card does not.

This trend has created a preservation nightmare. Notably, Japan’s National Diet Library, which archives cultural output, has officially refused to collect these Game-Key Cards because they do not qualify as “content” under their preservation scope.[22] This highlights a key concern: If institutions designed to protect history cannot “save” a game because it lacks a permanent, physical form, digital culture is at risk of being erased.

Other companies have followed similar paths. Ubisoft, Microsoft, and 2K have all shut down servers for older titles, rendering certain online-dependent games, like Ubisoft’s The Crew, partially or entirely unplayable.[23] But when a console platform holder like Nintendo accommodates code-in-a-box distribution for its partners, the industry’s direction becomes clear.

When Access Disappears: Shutdowns and De-listings

The fragility of digital “ownership” becomes most apparent when access vanishes. Server shutdowns render games unplayable, even for some single-player games. Nintendo itself has closed digital storefronts for prior consoles, including the Wii U and Nintendo 3DS eShops.[24] Once closed, consumers lost the ability to purchase digital titles and, in some cases, faced complications re-downloading prior purchases.[25] Once a title is removed, new consumers cannot purchase the game at all through official channels.[26] Prior purchasers might retain access, but there is no guarantee of perpetual availability.[27]

Publishers often act within their legal rights, as EULAs typically reserve the authority to discontinue services. But the experience for consumers feels different. Paying $80 for a game that later becomes inaccessible, seems to resemble a defective product—except the “defect” in this case is legally sanctioned.

The Resistance: "Stop Killing Games"

The catalyst for organized consumer pushback was the shutdown of Ubisoft’s The Crew in 2024.[28] Despite the game being largely single-player, when Ubisoft shut down the servers, the game became entirely unplayable, even for those who had purchased it.[29] Days after the shutdown, Ubisoft even began revoking licenses from players’ libraries, effectively deleting the product from their hardware.[30]

This led YouTuber Ross Scott to launch the “Stop Killing Games” movement.[31] The campaign’s goal is to require games be left in a functional, offline-capable state once official support ends.[32] The movement successfully launched a European Citizens’ Initiative titled “Stop Destroying Videogames,” which amassed over one million valid signatures, forcing the European Commission to formally debate the issue by June 2026.[33]

The industry’s reaction has been mixed. Trade associations, like Video Games Europe, argue mandating offline modes would be too expensive for developers and could create legal liabilities.[34] But some developers, like the CEO of Gearbox Software, have expressed sympathy for the cause, noting the emotional toll of seeing creative works vanish forever.[35]

Conclusion

Nintendo’s transition to digital-first distribution illustrates a broader cultural shift: Entertainment consumption is moving from ownership to access. Video games increasingly resemble streaming media—where users subscribe or license rather than own.

The excited Switch 2 owner who opens a game case and finds only a download code faces more than mild disappointment. They confront a legal reality: They do not own the game they paid for. They own permission. The video game industry’s shift from property to license fundamentally alters consumer rights, where EULAs define access, servers determine longevity, and marketing language obscures actual rights.

As digital-only distribution becomes the norm, the gap between what consumers believe they are purchasing and what they legally receive will widen. Whether through regulatory intervention or market pressure, the law may eventually need to reconcile that divide. Until then, pressing “Start” increasingly means pressing “Agree.”

[1] John Walker, Even Nintendo’s Next Pokémon Game Will Be On A Game-Key Card, Kotaku (Nov. 11, 2025), https://kotaku.com/nintendo-pokemon-pokopia-game-key-card-2000642940; Gavin Lane, Nintendo’s Switch 2 ‘Game-Key Cards’ Somehow Manage To Make Codes-In-A-Box Worse, Nintendo Life (Apr. 2, 2025), https://www.nintendolife.com/news/2025/04/nintendos-switch-2-game-key-cards-somehow-manage-to-make-codes-in-a-box-worse.

[2] Id.

[3] 17 U.S.C. § 109 (first-sale doctrine); Nintendo’s “virtual game cards” are able to be loaned to others, subject to certain conditions, such as both users being part of the same Nintendo Account family group, the borrower can only borrow one game at a time, the game is automatically “returned” after fourteen days, and more. See Nintendo, Virtual Game Card Guide, Nintendo Support, https://en-americas-support.nintendo.com/app/answers/detail/a_id/67891/~/virtual-game-card-guide.

[4] Corynne McSherry, 2012 in Review: First Sale Under Siege — If You Bought It, You Should Own It, Elec. Frontier Found. Deeplinks Blog (Dec. 23, 2012), https://www.eff.org/deeplinks/2012/12/first-sale-under-siege-if-you-bought-it-you-should-own-it.

[5] Nintendo Switch: User Agreement, Nintendo Support, https://en-americas-support.nintendo.com/app/answers/detail/a_id/48058/~/nintendo-switch%3A-user-agreement (last visited Feb. 17, 2026).

[6] Id.

[7] Andrew Cohen, Digital Deceit: Study Reveals Consumer Misconceptions About Ownership Rights, U.C. Berkeley L. (May 27, 2016), https://www.law.berkeley.edu/article/digital-deceit-study-reveals-consumer-misconceptions-ownership-rights.

[8] Id.

[9] What Are EULAs and Why Should I Read Them?, Dartmouth Coll. ITS Servs. Knowledge Base (Article No. 64920), available at https://services.dartmouth.edu/TDClient/1806/Portal/KB/ArticleDet?ID=64920

(last visited Feb. 18, 2026).

[10] ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).

[11] 17 U.S.C. § 109(a).

[12] Vernor v. Autodesk, Inc., 621 F.3d 1102 (9th Cir. 2010).

[13] Id.

[14] David, The Shift to Digital Gaming: Why Physical Sales are Declining, Twice the Bits (June 19, 2025), https://twicethebits.com/2025/06/19/the-shift-to-digital-gaming-why-physical-sales-are-declining. (last visited Feb. 18, 2026).

[15] Id.

[16] Clara Davis, Why Are Physical Game Copies Becoming So Rare? The Shift to Digital Explained, Alibaba Product Insights (Feb. 16, 2026), https://www.alibaba.com/product-insights/why-are-physical-game-copies-becoming-so-rare-the-shift-to-digital-explained.html (last visited Feb. 18, 2026).

[17] Clara Davis, Digital vs. Physical Games: Ownership Rights and Resale Reality, Alibaba Product Insights (Feb. 10, 2026), https://www.alibaba.com/product-insights/digital-vs-physical-games-ownership-rights-and-resale-reality.html (last visited Feb. 18, 2026).

[18] Id.

[19] Matt Kamen, The Switch 2 May Signal the End of Physical Games, Wired (May 28, 2025), https://www.wired.com/story/the-switch-2-may-signal-the-end-of-physical-games (last visited Feb. 18, 2026).

[20] Id.

[21] The National Library of Japan is clear: Nintendo Switch 2 Game‑Key Cards are not worth preserving, AS.com (Aug. 25, 2025), https://en.as.com/meristation/news/the-national-library-of-japan-is-clear-nintendo-switch-2-game-key-cards-are-not-worth-preserving-n (last visited Feb. 18, 2026).

[22] Id.; Japan Declares Switch 2 Game‑Key Cards Unworthy of Preservation, Gfinity Esports (Aug. 26, 2025), https://www.gfinityesports.com/article/japan-declares-switch-2-game-key-cards-unworthy-of-preservation (last visited Feb. 18, 2026).

[23] Lan Pitts, Ubisoft Is Facing Lawsuit After The Crew Was Removed from Platforms, GameSpot (Nov. 12, 2024), https://www.gamespot.com/articles/ubisoft-is-facing-lawsuit-after-the-crew-was-removed-from-platforms/1100-6527713/; Darryn Bonthuys, EA’s Anthem Shutting Down Entirely, Will Be Unplayable Starting Next Year, GameSpot (July 3, 2025), https://www.gamespot.com/articles/eas‑anthem‑shutting‑down‑entirely‑will‑be‑unplayable‑starting‑next‑year/1100‑6532956/; NBA 2K24 Servers Will Shut Down on Dec. 31, 2025, NBA 2KW (Oct. 2, 2025), https://nba2kw.com/nba‑2k24‑servers‑will‑shut‑down‑on‑dec‑31‑2025?

[24] Notice of End of Purchases in Nintendo eShop for Wii U and Nintendo 3DS – Update January 2024, Nintendo Support (Mar. 27, 2023), https://www.nintendo.com/en‑gb/Support/Purchases‑Subscriptions/Notice‑of‑End‑of‑Purchases‑in‑Nintendo‑eShop‑for‑Wii‑U‑and‑Nintendo‑3DS‑Update‑January‑2024‑2174073.html.

[25] Gaming and the Reality of Delisted Games and Online‑Only Content, COGconnected (May 2025), https://cogconnected.com/2025/05/gaming‑and‑the‑reality‑of‑delisted‑games‑and‑online‑only‑content.

[26] Id.

[27] Id.

[28] Pitts, supra note 23.

[29] Id.

[30] Id.; Ubisoft Says Players Suing Over The Crew Shutdown Shouldn’t Have Expected to Own the Game Forever, Video Games Chronicle (Apr. 10, 2025), https://www.videogameschronicle.com/news/ubisoft-says-players-suing-over-the-crew-shutdown-shouldnt-have-expected-to-own-the-game-forever/

[31] TechSpot, Stop Killing Games surpasses 1 million verified signatures, EU to take action, TechSpot (Jan. 27, 2026), https://www.techspot.com/news/111089-stop-killing-games-surpasses-1-million-verified-signatures.html

[32] Id.

[33] Id.; Stop Destroying Videogames, Euro. Citizens’ Initiative, https://citizens-initiative.europa.eu/stop-destroying-videogames_en (gathering 1,294,188 statements of support and urging preservation of playable states for discontinued games)

[34] Statement on Discontinuation of Support to Online Games, Video Games Eur. (Apr. 7, 2025), https://www.videogameseurope.eu/news/statement-on-stop-killing-games/.

[35] Andy Chalk, Randy Pitchford Shares Thoughts on the Stop Killing Games Campaign, PC Gamer (Sept. 5, 2025), https://www.pcgamer.com/games/randy‑pitchford‑shares‑thoughts‑on‑the‑stop‑killing‑games‑campaign‑gets‑very‑existential‑its‑so‑sobering‑to‑think‑about‑the‑fact‑that‑everything‑will‑end‑not‑just‑us‑but‑literally‑everything‑and‑i‑kind‑of‑hate‑that/.