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Valve could face charges in Europe over Steam's user agreement
Valve could face charges in Europe over Steam's user agreement
September 24, 2012 | By Tom Curtis

September 24, 2012 | By Tom Curtis
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    14 comments
More: Console/PC, Business/Marketing



Valve Software could soon be facing legal charges in Europe, as a German consumer advocacy group has taken issue with some recent changes in Steam's end-user license agreement.

Last month, Valve sparked a bit of controversy when it updated Steam's user agreement to protect itself from class-action lawsuits, as users who declined this update found themselves locked out of their Steam accounts. The Federation of German Consumer Organizations believes that Valve coerced its users into signing the new agreement, and has set out to protect those consumers.

According to CinemaBlend, The Federation claims that Valve's new terms unfairly "disadvantaged" a number of legitimate Steam users, and the group has declared that Valve has until October 10 to respond to these charges. If Valve does not meet the deadline, the Federation says it plans to "resolve the dispute in court."

On top of these charges, the Federation wants to ensure that Valve's new user agreement meets the requirements of a recent European court ruling that says that game publishers cannot block European customers from reselling downloadable games.

At the moment, no online game distributors allow users to resell digital content, but with this new ruling, companies cannot put any systems in place that would block their European users from doing so. Companies like GameStop have already expressed interest in used digital game sales, and the Federation wants to verify that Valve isn't doing anything to preemptively block used game sales on Steam.

Like Valve, Sony has also updated its user agreements to prevent users from filing class action lawsuits. The company added a new clause to its PSN agreement one year ago that prohibited such legal action, though users had option to send a written letter to Sony to opt-out of the clause.

Gamasutra has contacted Valve for comment, but has not heard back as of press time.


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Comments


Cordero W
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We all knew this was going to happen. Not to mention, Europe comprises a large sum of Steam users.

Your move, Valve.

Robert Swift
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Valve simply can't allow people to resell their Steam games because a lot of their sales comes from discounted games which are actually never played.

Ian Uniacke
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I don't see why not, this would just become arbitrage.

Dave Troyer
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The resale of games doesn't necessarily mean the loss of sales or customers for Steam. Since Steam is essentially a DRM system and digital distributor, they can offer to "buy back" downloaded games that were only acquired and activated with their service and make sure that the user that sold it back doesn't use it again. Basically destroying their license and making any copy of that license popping up again becoming illegal. Though it will cut into their profit margin and make it far more difficult for Steam to offer such reduced prices to the consumers. So there is that; get ready Europe, you're games will get even more expensive and much heftier DRM since the game developers and publishers will be scrambling to get as much as they can from their product before some kid tries making a dime off of you too.

And lets be honest. The resale of downloaded games is pretty fucking stupid.

I think it's another case of "those who make the laws don't understand the law". If it's okay to resale "used" downloaded games, then essentially they are saying it's okay to try to make a buck off piracy. These are the same people that tried to take over the internet and take our freedoms away and ask you to email back attachments when you're done with them.

Vin St John
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That's not quite true, it's more like saying "clauses in user agreements which deem that a software license is non-transferable are invalid." A way to implement that would be to enable every game to have a registration key EVEN IF it was purchased digitally. The original downloader wouldn't need to input the key, but if they wanted to re-sell their game they'd have to de-activate it on their computer and hand off that key to someone, which would then invalidate the key.

It certainly jeopardizes game companies with not-so-strong DRM in place, though and I agree that it doesn't exactly make a lot of sense. If anything, I could see this becoming "Steam users should be allowed to sell their steam account to someone if they want to."

Lance Douglas
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When you rent an apartment, you don't own that apartment. You are simply paying to live in it for a limited time period. If you want to own it, you would have to pay a lot more money. When you buy tickets to a sporting event, you aren't buying the players, you are purchasing access to see them play at specific time and place. Reselling the tickets is called scalping, and its illegal. You want to own that team? You better have a huge bank account. If you want to "own" a game, then pay the entire cost of production, which in many cases is millions of dollars. Then you will own it. Otherwise, you are just paying for the privilege of playing it. Just because you want something doesn't mean you are entitled to it.

Lance Douglas
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@zack

http://yourlogicalfallacyis.com/appeal-to-authority

Lance Douglas
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It's possible this might drive more developers to give digital copies away for free and charge for access to their servers, so that interactive entertainment more and more becomes a service, and not a product. It looks like europe is doing everything it can to kill anything that's not free2play. Could you imagine someone going to an amusement park, paying the admission price, riding all the rides, and then saying, "I'd like to sell my copy of this amusement park to my neighbor. He'll be coming in tomorrow, and he won't have to pay for admission."

Cordero W
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Now that's just taking it out of context. You're not buying the actual park. Video games are different: you're buying the game itself to play as a software for your enjoyment. If we move toward a rental/ service model, then video games cease to be software and become the games you end up playing at hotels: timed and lacking.

Lance Douglas
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Servers run on electricity and are maintained by personnel, which have overhead operating costs, just like amusement parks. With many MMOs, your subscription doesn't actually buy the game, it purchases access to the game for a limited time. You stop paying, you lose access.

Luke Shorts
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I have read through the links provided in the article, and the crux of the matter is not really clear to me. Not being able to lauch a class action anymore under the new ToS is one thing, allowing Steam users to resell their game under "UsedSoft vs Oracle" is quite a different thing. The two cases have only one common ground in that the definition of "licensee", given to Steam users, might not hold water under that ruling. The CJEU in fact considered the issue of licensing agreements and expressed its opinion on it in that ruling, as follows:

"if the term ‘sale’ within the meaning of Article 4(2) of Directive 2009/24 were not given a broad interpretation as encompassing all forms of product marketing characterised by the grant of a right to use a copy of a computer program, for an unlimited period, in return for payment of a fee designed to enable the copyright holder to obtain a remuneration corresponding to the economic value of the copy of the work of which he is the proprietor, the effectiveness of that provision would be undermined, since suppliers would merely have to call the contract a ‘licence’ rather than a ‘sale’ in order to circumvent the rule of exhaustion and divest it of all scope" (para 49)

You can consider the above as the legal version of "if it looks like a duck and quacks like a duck, then it's most likely a duck".

If it is possible to succesfully argue that licenses issued under Steam's ToS are actually sales under the CJEU's definition (I'm not saying that it is, I haven't read the ToS or the complaint), then any provision that would terminate access to games upon refusal to update their ToS would be unenforceable under the above Directive. In my opinion, this would be already a huge improvement of consumers' rights.

Another question that the complaint might want to explore is to what extent the "no class action" clause in the new ToS is legal to begin with; we all know that it's become really popular among providers of online services because of some recent SCOTUS jurisprudence, but what's good in the US might not be good in Germany, UK, or any other country.

PS: From the above definition, it is clear that the kind of sale that the CJEU was considering is completely different from a MMO subscription, so that should answer some misguided comments I see above. In any case, a good overview in plain English of the judgement can be found here:

http://www.gamerlaw.co.uk/2012/07/legality-of-second-hand-sales-i
n-eu.html

and the judgement in its entirety, here:

http://curia.europa.eu/juris/document/document.jsf?text=&docid=12
4564&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=52
35143

Lance Douglas
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This is what I said:
"It's possible this might drive more developers to give digital copies away for free and charge for access to their servers, so that interactive entertainment more and more becomes a service, and not a product."

This is a quote from your first link:
"Software as a Service. As software and games increasingly become long-tailed services rather than digital goods, the question of the legality of second hand sales recedes into the distance."

The link that you provided directly supports the point I was making.

Luke Shorts
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I am not discussing the validity of your point, I am merely saying that it has nothing to do with the CJEU decision and, by extension, with the news reported above (it is purportedly an attempt to enforce that ruling on Steam, after all). The passage of the blog you cite says the same, by commenting that the ruling is not relevant for MMOs and other Internet services. Then, saying that Europe is killing "anything that is not free2play" is factually wrong, since e.g. subscription-based MMOs are clearly outside the scope of that ruling.

However, what the CJEU decision does say is that you cannot disguise a sale by saying that it is a license (or in your language, by saying that you provide access to the program), if such license has the essential characteristics of a sale. Here's where things get tricky: if your "providing access" merely consists in a DRM mechanism so as to ensure that only one copy of the software is run at the same time and the other conditions of para 49 cited above apply, then I'd say you might fall under the ruling (note the conditional tense, the devil is ALWAYS in the details in legal matters). Of course, the more what you provide is actually a service the least likely you are to be sued (and even less likely to lose such a lawsuit) in order to get this right to a second sale enforced.

Lance Douglas
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At this point, you are just arguing over semantics. Many free2play games include subscriptions and most subscription games have some free elements. So to suggest that there is a sharp delineation is a bit of a stretch. In any case, the scope of my statement was much larger than this judgement, which is just one instance in an on going pattern of behavior. I chose the word "free", because I was making a commentary on the culture of entitlement in europe, and how they expect entertainment to be free.

As for the sale/license issue, the document keeps using the phrase "unlimited period". So to stay out of the jurisdiction of this ruling, a developer could put a time limit on the purchase. It then would become a rental and not a sale, in the same way you would rent a physical copy of a movie or game for one price, and buy it for another. Or the way that services like Netflix rent movies for a limited time. You don't have an intrinsic right to resell something that you are only renting. The item must eventually go back to its rightful owner. Other examples of rental services are snow skis, jet skis, warehouses, storage units, campsites, and hotel rooms. All these industries would be affected if the courts disallowed rentals.


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