Legal Landscape 2025: Emerging Trends Shaping the Future of Law
At the beginning of this year, we shared some forecasts on important trends for 2024. Now, it’s time to reflect and evaluate where we were accurate (+) and where we missed the mark (-), as well as making fresh predictions for 2025.
This year, we opted not to cover topics like the Metaverse and NFTs. We didn’t foresee any significant trends in these areas, and we do not expect these topics to gain momentum next year.
However, there remains a robust Top Ten to discuss, so let’s dive in…
1. Artificial intelligence and copyright
What we predicted (+)
“While the conversation has mostly revolved around AI-generated audio-visual content so far, it may soon pivot to AI-created game code and databases. Simultaneously, game publishers will continue to explore alternative applications for AI.”
“Moreover, it seems probable, given the wave of lawsuits that has already commenced in the US and the UK, that continental Europe will also witness the first Generative AI copyright infringement cases reaching the courts… Rights holders who desire to prevent their works from being scraped for AI training should mark their websites appropriately.”
What actually happened
AI appears to be everywhere. On the positive side, our predictions have largely materialized, albeit perhaps a bit more slowly than anticipated.
In the US, numerous legal disputes are unfolding, though Europe is still lagging behind in terms of AI-related legal issues.
Two notable cases are worth mentioning:
The Hamburg Regional Court was the first German court to determine whether AI training infringes copyright. It dismissed a photographer’s claim, ruling that the use of his image was covered by the so-called text and data mining exception.
A few months earlier, the Prague Municipal Court decreed that an image produced by an AI system cannot be protected by copyright. This aligns with current legal interpretations in the EU, where only human creators can claim copyright over their work.
The AI Act imposes considerable liabilities. For game companies, the obligation to disclose when users are interacting with AI and to label AI-generated content will likely be the most significant.
Conversely, Europe aims to take the lead in regulations. The EU is quite proud to have enacted the EU AI Act as the world’s first comprehensive legislation on AI, although many provisions will take effect only in 2026. The AI Act imposes substantial responsibilities. For game companies, the necessity to disclose when users are engaging with AI and to label AI-generated works will arguably be paramount.
Regulation does not hinder businesses from utilizing AI. Many are actively exploring the opportunities it presents. Therefore, it is no surprise that X is also progressing in this sphere. Still, it may not have been apparent to everyone that as part of the TOS update on November 15, X now requests a license from users to compile AI-generated content using individual posts. Indeed, clause 3 of the new TOS is so extensive that users almost universally consent to X using their posts to create misleading information or deepfakes.
What’s next for 2025
For game companies, the dialogue surrounding the interplay of IP and AI presents a two-edged sword. Game developers are likely to embrace the ways AI can be used—for instance, to generate resources, create immersive game worlds, aid in play testing, moderation, or simply to draw inspiration. However, leading AI systems readily produce images that seem to replicate game IP.
Rebel’s Dan D. Nabel shared: “I expect more developments in copyright/AI litigation (hopefully resulting in some useful U.S. decisions on the fair use question).”
And we desperately need practical guidelines!
In Europe, the concept of “fair use” does not exist, yet copyright law does include a text and data mining exception (ironically, the law does not extend such an exception to creators). We anticipate needing further guidance from courts on how precisely companies should reserve their rights, such as whether this should be done via a robots.txt file or another web protocol, or if straightforward text suffices (currently, the advice suggests not to rely solely on basic text).
More direction might come from the EU’s AI Office, which has assembled working groups to develop a General-Purpose AI Code of Practice, addressing copyright and transparency, among other issues.
We also hope to see additional guidance regarding AI and data protection (there has been a statement from the data protection authority of Hamburg indicating a more AI-friendly stance—more on this in the data protection section of this article).
Ubisoft and others are exploring credible AI for NPCs. This may lead to important discussions regarding transparency obligations toward individuals under the AI Act, even though these will not take effect until 2026.
Ultimately, game companies must confirm that their freelancers and subcontractors are utilizing AI. If existing contracts do not address this matter, it is high time to revise them. (Many larger companies have already undertaken this.)
2. Online platform regulation
What we predicted (+)
“Game companies will strive to meet the February 17, 2024 deadline for compliance with the Digital Services Act, navigating the complex layers of obligations that the increasingly intricate EU framework presents. However, in 2024, we anticipate that the EU Commission will initially focus on the high-risk category of very large online platforms, rather than on games specifically. Game companies may not be completely overlooked, but they are unlikely to be the first targets in early 2024.”
What actually happened
The European Commission directed considerable attention to large online platforms as much as anticipated. Among other actions, they initiated formal proceedings against TikTok due to its algorithmic systems that may contribute to behavioral addictions. No game or gaming provider has been officially classified as a truly large online platform thus far (to be classified as such, it must have at least 45 million monthly users within the EU). Furthermore, no major enforcement activities against gaming companies have been made public.
Nevertheless, game companies have begun pondering whether their games qualify as online…
Platforms that are either included or excluded under the DSA. Surprise: The answer varies, primarily based on how much specific personal information is stored on the servers and if that data is shared with the public.
Simultaneously, Digital Services Coordinators (the authorities responsible for enforcing the Digital Services Act within EU Member States) have been established, and – at least in nations like Germany, Ireland, and France – have either officially or unofficially engaged with various gaming companies.
The law does not hinder businesses from utilizing AI technologies. Everyone is genuinely engaged in exploring the opportunities it presents.
Germany has taken regulatory actions to a new level by not only appointing one digital services coordinator but three. The country’s implementation act designates the Federal Network Agency (Bundesnetzagentur) as the Digital Services Coordinator for standard issues within Germany. Additionally, it identifies the Federal Agency for the Protection of Minors in the Media (BzKJ) as the authority responsible for safeguarding minors on online platforms, and lastly, the Federal Commissioner for Data Protection and Freedom of Information (Bundesdatenschutzbeauftragter) for advertising based on online profiling.
The BzKJ, by the way, is the organization that can place games on an “index” if they are deemed excessively violent (you may recall that, in the past, German versions of games sometimes featured green blood). Now, they have expanded their competencies and established an independent office (KidD) to oversee youth protection measures on online platforms. KidD has promptly begun its operations and released a guideline for youth protection compliance for online platforms under the DSA (an English summary can be found here).
What to Expect in 2025
The DSA is set to become increasingly significant for the protection of minors and for gaming companies, at least those that qualify as online platforms. This could potentially influence other jurisdictions. Accordingly, Rebel’s Dan D. Nabel shared: “For 2025, among other things, I foresee more legislative efforts to ‘protect children’ through platform regulations.”
It seems fairly apparent to us that the DSA and its compliance will grow progressively crucial. While we do not anticipate any early decisions regarding the status of any specific online game under the DSA, authorities will begin to scrutinize popular games more closely and require gaming companies to provide additional information.
For online platforms, the EU Commission plans to issue guidelines in 2025 concerning the protection of minors.
3. Terms of Service / EULAs and Consumer Protection
What We Anticipated (+)
“If no consequences have emerged in 2023, it might simply be due to the new legislation being too recent and perhaps too complicated to easily understand. We should anticipate seeing more consequences as both consumers and relevant agencies within EU member states become more accustomed to the new regulations in practice.”
What Occurred
Major gaming companies were accused of misleading consumers into spending money by the European Consumer Organisation (BEUC). The primary concern noted by BEUC revolves around premium in-game currency – for instance, it asserts that prices should be indicated not only in virtual currency but also in real-world currency.
However, while the focus of this criticism is on premium in-game currencies, BEUC also examined the Terms of Service for these games and, not surprisingly, found them unsatisfactory (the lack of surprise doesn’t imply that gaming companies were particularly poor; consumer protection groups are rarely satisfied when they uncover issues publicly). BEUC contended that EU consumers waive too many of their statutory rights and that some of the terms are unclear. Specifically, terms that permit gaming companies to modify or withdraw game features often exceed what is legally acceptable, BEUC argues.
BEUC argues that Terms of Service allowing gaming companies to modify or withdraw game features often exceed what is legally permissible.
Similar issues, different approaches in California. While BEUC argues that consumers “purchase” digital currency yet are stripped of the rights they would typically have with “purchased” goods, California recognizes the nature of digital goods yet requires companies to make clear that items are not “purchased”.
Nonetheless, the EU is determined to escalate this significant issue! In its Digital Equity Health Check (who coined that term?), the European Commission expressed concerns that the use of intermediaries in in-app digital currencies distorts the actual cost of in-app transactions for consumers, encouraging them to spend more than they initially intended. Furthermore, the Digital Equity Health Check consultations highlighted issues surrounding marketing practices related to digital items, including the presentation of prices, time-limited offers, pay-to-win items, and others.
Additional concerns were raised regarding the discontinuation of a game’s live services that could potentially result in the loss of purchased digital items. In this context, the server shutdown of The Crew, which could not be played as a persistently online game, sparked outrage and even led to an EU petition to ‘stop killing games’.
Video games are clearly on the radar of consumer protection authorities in EU member states, who have begun enforcement actions against gaming companies. For example, the Netherlands Authority for Consumers and Markets (ACM) has imposed penalties on Epic Games for alleged unfair marketing practices aimed at children in Fortnite.
The German consumer protection group Vzbv will also be reviewing the gaming industry.
What to Expect in 2025
The resurgence of consumer law enforcement against gaming companies will persist. Many of these cases may be resolved behind closed doors, but consumer organizations are prepared to take legal action if necessary.
Although this may sound like negative news, arguably it could be preferable to increasingly stringent regulations from EU lawmakers or, even worse, at a national level. However, the European Commission seems determined to propose a new Digital Equity Act.
4. Loot Boxes (+/-)
Our Forecast
Riot’s Dan D. Nabel informed us: “‘Investigations into ‘dark patterns’ will continue, as will evaluations of monetization strategies, including loot boxes.”
It will be intriguing to see if the Austrian rulings hold up. In this scenario, claimants – once again, supported by litigation funders – will attempt the same in various jurisdictions. However, we anticipate more comprehensive bans on loot boxes (similar to what occurred in Belgium and as announced in the Netherlands) and increased penalties for game operators (as seen recently in Austria).
What Transpired
Dan got it right; we did not.
The BEUC complaint mentioned earlier actually pertains to monetization systems, even though the somewhat dated term “dark patterns” is no longer in use (and loot boxes are not referenced in this complaint either).
In Germany, ongoing discussions have focused on tightening regulations around loot boxes, meaning applying gambling laws to them, which could lead to a ban. However, contrary to our expectations, there was no outright prohibition.
Video game companies must ensure that their freelancers and contractors are utilizing AI. If the current contracts do not address this issue, it’s high time to revise them.
Basically, there was another ruling in Austria concerning EA Sports’ football simulation (in this instance: FIFA 23), but this time it favored EA Sports. The court determined that the plaintiff did not purchase the Ultimate Team packs intending to sell the included players for profit. As a result, no “economic risk” was deemed to have been incurred, which is necessary to qualify as gambling.
What Can Be Expected in 2025
We do not believe the dialogue surrounding loot boxes will cease; however, it may be overshadowed by the wider discussion on digital fairness mentioned in the consumer protection section above.
5. Incomplete Products, Product Descriptions, On-Screen Texts, and Right of Withdrawal (+/-)
Our Forecast
“We still find these to be significant topics, yet the focus on them appears to have diminished faster than we anticipated. Perhaps they’ll remain under the radar for some time.”
What Transpired
Indeed, but only slightly. Some gaming companies included a waiver on the right of withdrawal in their terms and conditions, which faced criticism from BEUC (see above), but that is the extent of it.
What Can Be Expected in 2025
The right of withdrawal, in particular, may become one facet of the larger consumer protection topic discussed above.
6. Replicas and Other Intellectual Property Disputes (+/-)
Our Forecast
“Replicas and intellectual property disputes will remain a prominent concern. They may very well be thriving due to AI usage.”
What Transpired
The Pokémon vs Palworld case gained significant attention – primarily because it is a patent case, while replicated gaming scenarios often revolve around copyright and competition laws.
Beyond the Pokémon vs Palworld showdown, replicas are indeed a pressing issue (as we predicted), but AI did not appear to play a pivotal role. As far as we know, AI is not yet employed to identify cloned games in the same manner that it is used in other domains to detect online infringements (e.g., hate speech), and there is little evidence that AI was central to the proliferation of replicas either.
Numerous clones continue to be visible on the Google Play Store and Apple App Store. Despite the Digital Services Act, removing even the most blatant copies can still prove to be a struggle (or a game of chance). It can also be challenging to obtain the names and addresses of the clone publishers from Apple or Google, despite the Digital Services Act imposing “know your business customer” obligations on online marketplace platforms.
In October, the European Court of Justice ruled that a cheating method that only modifies the content of variables temporarily stored in RAM during game operation does not fall under the protection of the Directive concerning the legal protection of computer programs (Directive 2009/24/EC).