The Day Before was the survival hope on Steam turned into a big disappointment. Many players feel cheated, but can we speak of fraud? And what rights do buyers have? GameStar Talk speaks with a lawyer.
What is the current situation regarding The Day Before? After a long wait, several delays, and a legal dispute, the former most-wanted game finally went into Early Access on December 7, 2023. However, what skeptics had long foreseen came true: The Day Before was not the game it claimed to be.
MeinMMO editor Britta was there at the release and reported on her burst survival hopes.
Many players felt cheated: In numerous videos on YouTube, discussions on Reddit, or the comments under the X-posts of the developers Fntastic, the term “scam” is mentioned. In a video with almost 140,000 views, The Day Before is even referred to as the “biggest scam of the year” (via YouTube).
But what does it look like legally and what options do disappointed buyers have?
Who is speaking? The colleagues from GameStar Talk spoke with lawyer Kai Bodensiek. He specializes in advising publishers and developers of computer games on contract and licensing law, copyright and competition law, and corporate law and has been a guest on GameStar Talk several times.
You can find the whole talk on the GameStar Talk YouTube channel or here in the video:
Is The Day Before officially a fraud?
What does the lawyer say? With the term “fraud,” Bodensiek is cautious because, in legal terms, this is a criminal offense. Whether the developers Fntastic have committed a criminal act would need to be examined first. To fulfill this criminal offense, intentional deception of consumers and intended financial damage would need to be proven.
The studio itself states on X that they overestimated their own capabilities: “That was our first major project. Poorly done.”
Instead, the lawyer speaks of “misleading advertising.” While it is indeed legitimate to exaggerate something in advertising, once concrete promises are made, these must also be kept.
If a survival MMO promises an open world, the buyer is entitled to expect that they can move with many other players in a large, open world. If this is not the case, according to Bodensiek, it can be described as a defect, which can also be addressed by consumer protection agencies.
Even the Early Access status does not protect against fulfilling given promises. It must be clearly communicated that some planned features are not included in this version.
A written summary can also be found with the colleagues at GameStar.
Steam seems to make an exception for The Day Before
Will players get their money back? In principle, players have several options to get their money back on Steam. Those who have not yet played for two hours can usually return games within 2 weeks without any issues.
In the case of The Day Before, however, even players with more playtime have a good chance of getting their money back. This is also promised by the developers Fntastic on X. Accordingly, all buyers are supposed to get their money back, regardless of playtime.
Those who decide to return the game in light of the recent developments regarding the alleged closure of the studio behind The Day Before can justify this well according to Bodensiek:
- The Day Before was advertised before release as an open-world MMO, but in its current state resembles a survival shooter. Here, players should be able to assert a warranty claim.
- According to German law, purchased software must be provided with updates for “an expected period.” This is no longer guaranteed due to the closure of Fntastic.
The lawyer even suspects that Steam itself could take action to refund players. In fact, many gamers are said to have successfully returned the game already.
You can find another exciting GameStar Talk with our editor-in-chief Leya Jankowski here: Middle finger to the AAA industry: Baldur’s Gate 3 was no coincidence
