Recently, there's a lot of commotion in the PC gaming market over the Epic Game Store, a new digital-only PC games store and platform which is trying to break into the market. A lot of PC gamers are criticising Epic, the store owner, for being anti-consumer, because instead of providing some kind of benefit over competing platforms, Epic is simply using the large amounts of money they earn with their cash cow game (Fortnite) to bribe 3rd party developers to release their games as timed exclusives on the objectively inferior Epic platform, so they release first on the Epic store and then a year later on other platforms.

Now, some of these games have been marketed as releasing on Steam, the biggest gaming platform right now, as well as other PC gaming platforms, either through marketing material or through statements made on crowdfunding platforms used to fund the development of the game. For example, a game called The Outer Worlds, was clearly marked as releasing on Steam in promotional material. and as another example, the game Phoenix Point explicitly stated in the launch FAQ for the crowdfunding campaign on Fig(https://www.fig.co/campaigns/phoenix-point/about) that the game would be releasing on Steam and GOG.

To me as a non-lawyer, this seems fishy and maybe even breach of contract and/or advertising laws. Phoenix Point backers could have based their decision on whether to back the game based on the promised Steam release.

Does a situation like this constitute breach of contract and/or a violation of advertising laws? Note that while this is tagged United States, I also welcome legal responses from other jurisdictions given the international nature of the Internet.


Does a situation like this constitute breach of contract and/or a violation of advertising laws?

No. There is not enough information that would lead to a finding of either.

It is unclear how customers would be allegedly affected (if at all) by the release of a product at a different store, let alone where the goods or services at issue are digital and require no physical presence at a venue or premise. Except for very specific factual circumstances, a change of sales venue would hardly be cognizable as deceptive or unfair practice.

Also, prior to purchasing or reserving a game, there is no contract between the public and the developer/supplier. Potential customers typically are not entitled to a specific performance by the developer.

Even if [Phoenix Point] supporters' decision were provably based on the prospect of release at Steam, your description nowhere reflects that there was a mutually conscious exchange (or promise of an exchange) of considerations involving the parties' support of a game and the counterparty's release of the game at a specific venue. Absent that meeting of the minds, either party's reliance or expectation on the other is irrelevant. Generally speaking, the sole cruciality of either party's motives does not create legal obligations.

  • 1
    My initial reaction is also "no", but crowd-funding sites might change the analysis. – Martin Bonner supports Monica Mar 21 '19 at 12:03
  • @MartinBonner Yes, but that depends on what representations the developer made at the crowd-funding site, since the terms thereof could meet the elements of a contract. The materiality (if not cruciality) of a clause on sales venue would still have to be evident in the formation of that contract. It just seems unusual that crowdfunding of a PC game would be mainly motivated by where (meaning "at which store") the game will be released. – Iñaki Viggers Mar 21 '19 at 12:47
  • I'll make that case for you. GoG has a policy of no DRM. Epic does not. The backers probably really want no DRM. – Joshua Jan 29 '20 at 22:45

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