Update
Updates and e-sports
What is an update?
An update is a subsequent modification of software. Updates are usually carried out to repair the software, to improve the software or to adapt it to changed circumstances. In esports, updates are relevant when they concern video games. Since gaming has increasingly shifted to the internet, updates in video games have become an always present topic.[1] Today, video games played in esports are subject to regular updates.[2]
Updates affect either the code of the video game or its audiovisual presentation.[3] For example, an update could change the code so that character X remains visually unchanged but can now cause ‘10% more damage’.[4] On the other hand, a character could be completely remodelled visually, but at the same time retain all of its characteristics that concern the game dynamics. Similarly, an update could introduce an item that is completely new both visually and in terms of its properties.
The technical process of an update in a video game depends on the system structure. Online games that use a client-server architecture are still predominant today. In a client-server structure the players access the resources of central game servers as clients. At the same time, complementary processes take place at the client’s device using client software.
The client creates an interface that allows to experience the game. Clients and server are dependent on each other for the game to function. Hence, an update can potentially concern both: the server software and the client software. If the client software is affected, the players must first download the update programme to their end device and run it, unlike with updates on the server.
Modern cloud gaming does, in principle, not require the use of client software,[5] so that the player only must input and output signals. Updates only concern the server software.
Updates in video games can be based on different motivations.[6] Traditionally, they are used to maintain and optimise the game software.[7] This primarily includes bug fixing,[8] whereby objective errors in the game are eliminated.[9] In modern video games, however, updates go far beyond bug fixing. Updates are often used for balancing or the implementation of new content.[10] The aim of balancing is to maintain or restore the internal balance of the video game.[11] In many games, the abilities of the game characters or the properties of items are decisive parameters.
These can be strengthened or weakened.[12] A successful game balance is crucial for the success of a game in general[13] and especially as an esports title[14]. By an update, also completely new content such as maps, weapons, environments, or game characters can be added. The implementation of new elements is often combined with a payment barrier. Such updates are often criticised by players.[15]
For League of Legends, it was found that updates for balancing or implementing new content significantly outnumber those for simply fixing bugs.[16] In addition, the ability to change video games retrospectively means that developers often launch games on the market that are playable but incomplete and only complete them over time with updates.[17] In games where strategy is particularly important, it is also impossible for developers to fully predict from the outset how the gameplay will develop over time.[18] Publishers then react to actual gameplay with updates.
Importance of updates in e-sports
Updates as changes of the video game’s rules
The conditions defined by the video game software are sometimes referred to as the ‘rules of esports’.[19] In fact, the conditions in video games are comparable to the rules in traditional sports. Both types of rules regulate what happens ‘on the pitch’. In contrast to traditional sports rules, however, the conditions in video games are self-executing – in this respect, they are identical to the actual possibilities for action in the game. This also makes them comparable to laws of naturesuch as gravity, although unlike conditions in video games, these are not changeable. This is reminiscent of the well-known quote by Lawrence Lessig ‘code is law’.[20]
As a result, video game publishers can make changes to the game without being legitimised to do so like a governing body, which a comparable to rule changes in traditional sports or even go far beyond them.
Updates and the idea of competition
One of the things that distinguishes esports from casual gaming is the increased importance of competition. Updates are therefore particularly relevant for esports if they have an impact on the integrity or fairness of the competition.[21] Accordingly, favouring or disadvantaging individual participants from the outset and the decisive influence of random factors are detrimental. Updates can (intentionally or unintentionally) easily affect the fairness of the competition (positively or negatively).
Permanent fluctuations in the video game’s conditions are also problematic in terms competition – regardless of whether they affect the integrity of the competition.[22] The regularity and simultaneous unpredictability of updates can lead to uncertainty for esports players, who may have to adapt to significantly changed conditions shortly before a competition.[23]
The publisher’s motivation differs from the interests of other stakeholders (such as esports players, third-party organisers and clubs). This can lead video game publishers to carry out updates that are detrimental to esports. For example, it is now common practice for publishers to grant players in-game advantages in return for payment. Updates therefore harbour considerable potential for conflictin esports.
Despite their risks for esports, updates are also an important tool for promoting and maintaining integrity and fairness. Updates must be used for bug fixing. In addition, corresponding updates are often the most effective means of combating undesirable behaviour such as cheating, exploiting or duping.
Problematic updates in the past
The following examples illustrate how harmful updates can have a concrete impact on esports:
In the summer of 2016, the publisher Riot made an extensive update to League of Legends.[24] This rendered a previously widespread strategy unusable and was implemented just one week before the start of the league phase of the North American League of Legends Championship Series (LCS) and just a few weeks before the subsequent playoffs. The professional scene was severely affected by this, which became particularly clear in an interview with Andy “Reginald” Dinh, ex-professional and owner of the team ‘SoloMid’, one of the most successful teams in League of Legends worldwide. Dinh was very angry about the specific update and Riot’s update policy in general.[25]
Epic Games, the publisher of Fortnite, made a controversial update shortly before the ‘Grand Finals’ of the North American ‘Winter Royale’ in December 2018.[26] With this update, new powerful items, in particular a sword weapon and aeroplanes, were added to the game.[27] Competitors who had qualified for the competition under different conditions had to adapt to the changed circumstances in less than a week before the competition started.[28] Many saw the changes as a significant impairment of the game balance.[29] The result was the withdrawal of numerous top players before the final round. This in turn led to a drop in spectator numbers.[30]
An update made by Epic Games in spring 2019 was similarly problematic. This extensive update was made less than 24 hoursbefore the ‘ESL Katowice Royale’ – the prize was 500,000 dollars.[31] The update not only changed the conditions the competitors had previously used to prepare intensively,[32] but also revealed numerous bugs that robbed individual participants of their chance to win the competition[33].
The publisher EA is constantly criticised for the fact that additional purchasable content added via updates is too important in the competitive FC (formerly ‘FIFA’) scene.[34] This is due to the fact that a large part of FC esports takes place in the ‘FC Ultimate Team’ mode. In this mode, players have to build their own team with ‘player cards’. In order to get the best cards possible, many players invest considerable, sometimes five-figure sums in loot boxes every year after the release of the new FC version.[35] Only a few players who do not make such investments manage to remain competitive in FC Ultimate Team.[36]
Legal factuality
Updates in video games and the questions of when the publisher is obliged to provide them and to what extent it is authorised to do so have so far been of rather theoretical significance. There is also still no relevant (published) case law, at least in Germany. This seems logical in view of the fact that it seems economically pointless for the ordinary user of a video game to spend resources on demanding updates or demanding their removal or omission.[37] Accepting such circumstances or switching to other video games or other leisure activities is much more resource-efficient.
However, esports could bring updates into the focus of legal disputes in the future. The increased idealistic motivation compared to casual gaming, but above all the pronounced professional and highly commercialised structures of esports, ensure that the ‘whether’ and ‘how’ of changing the game software is of enormous importance for the interests of numerous stakeholders. If, as past incidents have already indicated (see above), updates can determine the economic fate ofseveral groups of people, the legal context becomes fundamentally important. In this respect, it is to be expected that affected groups will increasingly look for ways to defend themselves against an update policy that is contrary to their interests.
Updates under copyright law
Under copyright law, an update constitutes a form of alteration (cf. Art 4 of the Computer Program Directive) – either concerning the audiovisual or the code of the video game.[38] Necessarily, the publisher has the exclusive right to carry out the same.[39] In this respect, the publisher has a legally protected ‘update monopoly’, which is usually already technically inherent in the client-server architecture.
Updates under contract law
There are three categories of typical contract relationships in esports under which updates are primarily relevant. These consist of end user licence agreements (‘EULAs’), i.e. those contracts concluded by esports players in order to play the game or gain access to additional content, licence agreements with third-party organisers and contracts between organisers and esports players or esports organisations.
EULAs
EULAs are all standard contracts that are not individually negotiated. Moreover, there are no special EULAs for esports players. The games that are played in esports take place almost exclusively online.
Many aspects of the relationship between video game users and publishers in the EU are regulated by national law implementing Directive (EU) 2019/770 (Digital Content Directive).
Applicable national law
In most cases, under EU law, EULAs are categorised as consumer contracts, which means that, according to Art 6(1) Rome I Regulation, the law of the country of the player’s ‘habitual residence’ applies. In the context of professional esports, however,EULAs are sometimes not to be categorised as consumer contracts, especially if a professional esports player is not an employee of his organisation. According to Art 4(b) Rome I Regulation, in the absence of a choice of law, the law of the country of habitual residence of the service provider, which is usually the publisher, applies. A choice of law is then only permissible in accordance with Art 3 Rome I Regulation.
Obligation to carry out an update
The publisher may be obliged to carry out an update as a remedy for lack of conformity pursuant to national law implementing Art 14 of the Digital Content Directive. This comes into consideration above all if there is a significant impairment of the gaming experience.
Right to carry out an update
Art 19 of the Digital Content Directive constitutes a right to modify digital content ‘beyond what is necessary to maintain the digital content […] in conformity in accordance with Articles 7 and 8’. As described above, most updates in video games fall under this regulation as they mainly alter certain specifics of the game instead of fixing bugs. This is only allowed if there is a specific clause in the EULA which must meet the requirements stated in Art 19:
- Contractual allowance and existence of a valid reason
According to Art 19(1)(a), such updates are only permissible for a valid reason which has to be stated in the contract. Moreover, it is necessary that the nature of the valid reason that may entitle the contract to carry out the contract is specified in more detail.[40]
A core concern lies in the term ‘valid reason’. In recital 75, the Directive cites the example of a change being necessary in order ‘to adapt the digital content or digital service to a new technical environment or to an increased number of users or for other important operational reasons‘.[41] Against this background, it is questionable how, for example, the implementation of new items, the modification of game environments or changes in favour of the game balance are to be assessed.
These are not likely to reach the quality of ‘important operational reasons’ if understood narrowly. Hence, since an overly rigid understanding of the term would be to the detriment of consumers, who regularly have an interest in new game content, what counts as a ‘valid reason’ should be determined on the basis of a balancing of interests.[42] For example, an update is always permissible if both the publisher and the players have a congruent interest in the change. At the same time, serious operational or economic reasons can also justify changes that impair the consumers’ interest in preservation and equivalence.
A consistent application of national law implementing Art 19 of the Digital Content Directive also means that in the absence of a corresponding reservation, no adjustments beyond what is contractually owed are permitted.[43] This is of considerable importance for the specific interests in esports. By the merit of Art 19 of the Digital Content Directive, changes to video games are likely to be more predictable than in the past.
For obvious reasons, in order for a publisher to be allowed to carry out an update, a ‘valid reason’ provided for in the contract must, in fact, be fulfilled.
Cost neutrality
According to Art 19(1)(b), the consumer may not incur any ‘additional costs’ as a result of the update. This means that any updates that cause an actual additionalfinancial burden for the consumer are not permitted.[44] This may apply, for example, to updates that make the continued usability of a video game dependent on the purchase of additional hardware or software. However, it is questionable how the implementation of paid additional content is to be assessed against this background.
This could be seen as an additional financial burden if the average player feels challenged to purchase the additional content for a full gaming experience in the future. It is conceivable that national law implementing this provision may apply if additional content is of considerable importance for meaningful participation in the game. This may also be the case if new items relatively devalue existing items.
Duty to inform
According to Art 19(1)(c) of the Digital Content Directive, the consumer must be informed of a change in a ‘clear and comprehensible manner’. Stricter requirements are set out in Art 19(1)(d) of the Digital Content Directive for changes that affect the accessibility or usability of the digital product. There is no obligation to give reasons.
In the case of routine adjustments, the publisher will regularly be able to fulfil this requirement by means of standard ‘patch notes’. In the case of updates with far-reaching consequences for availability and usability, increased formal requirements must be met, e.g. by sending an email (cf. recital 76).
Licence agreements with third-party organisers
As the organisation of public esports competitions involves copyright-relevant use of the video game,this is only permitted by third parties with the prior consent of the respective publisher holding the IP rights. This usually takes place by use of licence agreements. In addition to these permissions referring to IP rights and especially copyrights, licence agreements must also regularly include provisions on the de facto facilitation of the use of the video game for competitions – updates can play a role here.
Obligation to carry out an update
An obligation to update may derive from the contract if the video game is not suitable for the competitiondue to technical software circumstances. Particularly relevant in this respect are effects on the integrity and fairness of the competition. The same is for the organisation (e.g. the usability of certain game modes) and the presentation of the competition (e.g. the availability of certain spectator views). Such impairments may be due to bugs and other errors. However, they can also occur as a result of changes intentionally made to the video game by the publisher.
Right to carry out an update
The question of whether a publisher is allowed to carry out updates only arises if these updates also affect the software used for the respective competition. This depends on which server structure is used. If the competition runs on dedicated servers that are separate from the public game servers, the publisher is less likely to influence ongoing or upcoming competitions.
If competitions take place on separate servers, it can generally be assumed that the publisher is not allowed to carry out unnecessary updates after ‘material transfer’ without a special agreement. If competitions take place on the public game servers, the publisher has legitimate interests in carrying out updates. In this respect, even without an express contractual agreement, the publisher may be entitled to carry out updates, even if there is no need to do so.
If a publisher expressly reserves the right to carry out updates in the licence agreement, such clauses are subject to the applicable national law. In particular, standardised competition licences offered for the amateur sector may constitute general terms and conditions which may be subject to narrow regulations.
In addition, the respective update may be subject to legal restrictions under national law. This can be of especially important if updates have a particularly sensitive effect on ongoing or imminent competitions, e.g. due to the timing oftheir implementation.
Competition participation contracts
Updates can also become relevant in the contractual relationship between organisers and participants. How this relationship is shaped depends on the individual case. However, usually the organiser is obliged to provide an undistorted and undisturbed. The fulfilment of this duty can be impaired by updates immediately before or during a competition. In particular, claims for damages can be based on this. The responsibility will usually depend on whether the organiser is the same person as the publisher and therefore has a direct influence on the implementation of updates or whether the competition is organised by a third-party who can at best have an indirect influence on the publisher’s decisions.
Updates under competition law
In principle, competition law and especially Art 102 of the Treaty on the Functioning of the European Union (TFEU) can be considered as a potential ‘defence’ by third-party organisers and esports players or esports organisation against publishers. For example, the agreement of an update reservation (e.g. if it unreasonably favours the publisher) can potentially constitute an unfair trading condition (Art 102(a) TFEU) or an unjustified dissimilar condition (Art. 102(c) TFEU). The actual implementation of updates can potentially constitute an abuse of a dominant position in the sense of Art 102 TFEU.
However, the publisher would have to hold a dominant positionin the relevant market. This is unlikely in relation to the third-party organiser due to the range of video games suitable for esports. On the other hand, a publisher is more likely to hold a dominant position in the ‘competition market’ in relation to esports players or clubs if the publisher organises competitions.
If an update reservation is violating Art 102 TFEU, it may be invalid. If the actual implementation ofan update is in breach of competition law, claims for removal, injunctive relief and damages come into consideration.
Updates under tort law
In exceptional cases, updates can also become relevant under national tort law. Updates that unfairly distort the competition could lead to damage for participants and organisers. Entrance fees spent by spectators expecting an authentic competitioncan also constitute corresponding damages.
[1] See Tobias M. Scholz, eSports is Business: Management in the World of Competitive Gaming, (Springer 2019), at p. 50.
[2] Cf. Kelsey F. Ridenhour, ‘Traditional Sports and Esports: The Path to Collective Bargaining’ (2020) 105Iowa L. Rev. 1857, at p. 1883; Ferguson Mitchell, ‘Background and analysis on the recent dispute between Riot Games and team owners’ (The Esports Observer, 24 August 2016) <https://archive.esportsobserver.com/background-analysis-recent-dispute-riot-games-team-owners/> accessed 30 March 2024; Artian Kica et al., ‚Nerfs, Buffs and Bugs – Analysis of the Impact of Patching on League of Legends‘ (Proceedings of the 2016 International Conference on Collaboration Technologies and Systems), at p. 128, however, point out with regard to League of Legends that one would not expect such a frequency of updates for a ‘mature, stable game’.
[3] Kica (n 2), at p. 131, distinguish between ‘Bug Fix’, ‘Gameplay’ and ‘Visual’.
[4] Also see the article on ‘buff’.
[5] Instead of completely dispensing with the use of client software, the operations that take place on the client can also be largely shifted to the server. This also offers advantages such as lower demands on the user’s device.
[6] SeeQi Wang et al., ‘Research on the influence of balance patch on players’ character preference’ (2020) 30 Internet Research 995, at p. 996.
[7] Kica (n 2), at p. 128.
[8] Cf. Andreas Lober & Olaf Weber ‘Den Schöpfer verklagen – Haften Betreiber virtueller Welten ihren Nutzern für virtuelle Güter?‘ [2006] Computer und Recht 837, at pp. 840-1.
[9] Kica (n 2), at p. 128.
[10] Kica (n 2), at p. 128.
[11] Also see the article on ‘balancing’.
[12] See Timothy Burke, ‘Rubicite Breastplate Priced to Move, Cheap: How Virtual Economies Become Real Simulations’ (2002), at p. 1 et seq., available at: http://www.swarthmore.edu/SocSci/tburke1/Rubicite%20
Breastplate.pdf; for League of Legends Kica (n 2), at p. 131.
[13] Cf. Alexander Becker & Daniel Görlich, ‚’What is Game Balancing? – An Examination of Concepts‘ (2020) 1 ParadigmPlus 22;Jesse Schell, The Art of Game Design: A book of lenses (3rd edn, CRC Press 2019), at pp. 212 et seq.
[14] See Scholz (n 1), at p. 50.
[15] E.g. the inclusion of loot boxes.
[16] Kica (n 2), at pp. 131 & 133.
[17] Kica (n 2), at p. 130.
[18] Mathias Schneider, Virtuelle Werte – Der Handel mit Accounts und virtuellen Gegenständen im Internet (Nomos Verlag 2010), at p. 174.
[19] Hendrik Pusch, ‚Trennt „eSport“ und Sport nur ein Vokal?‘ [2019] npoR – Zeitschrift für das Recht der Non Profit Organisationen 53, at p. 57.
[20] Cf. Lawrence Lessig, Code: And Other Laws of Cyberspace, Version 2.0 (Basic Books 2006), at pp. 11 et seq.
[21] In detail Valentin Horst, Was schützt den E-Sport vor dem Publisher? (Nomos Verlag 2022), at pp. 46 et seq.
[22] Horst (n 21), at pp. 50 et seq.
[23] See Mitchell (n 2); also see Kica (n 2), at p. 130.
[24] SeeMitchell (n 2).
[25] Cf. Andy ‘Reginald’ Dinhin an interview with theScore esports, https://youtu.be/YcPP45gj72M, especially vividly from 02:03: ‘It’s like if […] they go into the NBA playoffs, it would be essentially like changing the basketball, so the basketball’s weight, and changing it to like shooting a bowling ball instead of a basketball.’
[26] Max Miceli, ‘Winter Royale Finals Suffer From Early Exits by High Profile Players, Unbalanced Patch’ (The Esports Observer, 14 October 2018) <https://esportsobserver.com/winter-royale-finals-suffer/> accessed 30 March 2024.
[27] Miceli (n 26).
[28] Miceli (n 26).
[29] Miceli (n 26).
[30] Miceli (n 26).
[31] Laura Byrne, ‘Pro players aren’t happy with Season 8 Fortnite changes ahead of $500K Katowice tournament’ (Dot Esports, 28 February 2019) <https://dotesports.com/fortnite/news/pro-players-arent-happy-with-season-8-fortnite-changes-ahead-of-500k-katowice-tournament> accessed 30 March 2024.
[32] Byrne (n 29).
[33] Jürgen Horn, ‘Fortnite: Darum schimpfen Pros über das große ESL-Turnier in Katowice’ (MeinMMO, 4 March 2019) <https://mein-mmo.de/fortnite-grosses-esport-turnier-lief-mit-neuem-patch-war-eine-miese-idee/> accessed 30 March 2024.
[34] See, for example, Fabian Sieroka, ‘FIFA 20: Kritik an teurer Kartenflut’ (Sport1, 27 January 2020) <https://www.sport1.de/esports/fifa/2020/01/kartenflut-in-fifa-20-und-der-verlust-der-glaubwuerdigkeit-beraubt> accessed 30 March 2024.
[35] Hauke van Göns, ‘Ohne Moos nichts los – Wieso FIFA 21 im Esport Pay2win bleibt’ (esports.com, 24 September 2020) <https://www.esports.com/de/ohne-moos-nichts-los-wieso-fifa-21-im-esport-pay2win-bleibt-129899>.
[36] van Göns (n 35).
[37] Similarly, Malte Kramme, ‘Vertragsrecht für digitale Produkte – Die Umsetzung der Digitale-Inhalte-Richtlinie im Schuldrecht AT’ [2021]Recht Digital 20, at p. 29 on the general enforcement of claims arising from consumer contracts concerning digital products.
[38] Also see s. 23 of the German Copyright Act in regard to other works than computer programs.
[39] Cf. Dieter Frey ‘eSports – Rechtsfragen eines komplexen Ökosystems im Überblick (Teil 2)’ [2018] SpuRt – Zeitschrift für Sport und Recht 53, at p. 56.
[40] Cf. Christina Möllnitz, ‚’Änderungsbefugnis des Unternehmers bei digitalen Produkten – Auslegung und Folgen des § 327r BGB-RefE‘ [2021] MMR – Zeitschrift für IT-Recht und Recht der Digitalisierung 116, at p. 118-9.
[41] Cf. Möllnitz (n 40), at p. 119.
[42] Cf. Möllnitz (n 40), at p. 119.
[43] Cf. Möllnitz (n 40), at p. 118.
[44] Cf. Möllnitz (n 40), at p. 119
