Comments inline.
Example: Madden NFL 26 – Distribution on physical media.
The game is available through the PS Store and via Mediamarkt. Gamers can download it directly or buy the Disc in the local store.
Case 1:
The game is the product. The manufacturer distributes the discs to multiple stores over time. The signed contract and the physical hand-over are a making available.
When this happens the first time for the game, then this is the placing on the market.
Again with my understanding, and per BG 2.3, the placing on the market happened once for each physical disc as they moved from the manufacturer to the various stores (all of these were
also making the disc available on the market). Agreed that all discs were (again) made available on the market when sold.
Case 2:
The disc is the product. The manufacturer distributes the discs to multiple stores over time. Every disc is a single instance of the product and the distribution over
time leads to multiple placing on the market, based on production date of the physical disc.
I believe that placement is not necessarily tied to production, but to movement to the store, but that's a minor point.
With every disc the support period has to be addressed for the disc, and not the software itself.
The support is for the licensee of that particular piece of software and starts from the time the product is made available to them.
Substantial modification would be linked to the disc, which is a
ROM and cannot get modified.
The product is the licensed software that's on that particular disc, not the physical support itself. Both the download and the disc are just distribution channels in that regard. So the substantial modifications are tied to the software itself, not the disc.
Conclusion:
The download is just one distribution channel like a physical media and therefore cannot be seen as the product.
Agreed. The download is not the product. The product (here) is the specific license sold to a particular user giving that user the right to use the software under the terms of the license.
My point is that the same game sold to n different players, regardless of the form it is sold in, are n distinct products under the CRA, even if all game are bit-to-bit identical. All n products are placed on the market separately: as the disc was moved to an EU store for players who bought it in a physical location or as the gamer completed the purchase for those who downloaded it from an online store.
I agree that this perspective requires us to change our understanding of a number of aspects of the CRA (notably around versioning and support periods), but I'm increasingly confident it is the correct one. It matches my understanding of the explanations that were given to me by market authorities and Commission officials on this topic during a CRA Expert Group workstrand meeting this spring, and is very aligned with the language in the Blue Guide that states quite clearly that both placing and making available on the market are per individual products.
That said, I'd love to get input from folks more knowledgeable than me on the topic; as mentioned, I might be very wrong about this.
I genuinely appreciate your patience and collaboration as we're exploring this space in the open and improving our collective understanding.
Thank you!
--tobie
