Valve Sued In Germany Over Right To Resell Games

from the consumer-reichs-advocates dept

Fri, Feb 1st 2013 8:39am — Timothy Geigner

Valve's Steam platform has certainly been one highlight on competing with piracy here at Techdirt. As something of the iTunes of PC gaming, it provides a wonderful example of how a great platform and added value can give those who could otherwise be pirates a real reason to part with their gaming dollar. This isn't to say that the platform hasn't been associated with some issues, but Valve seems to be among those folks that get it right more often than they get it wrong.

Still, we won't shy away from pointing out where those problems exist. Neither will German consumer associations, apparently, as one has now sued Valve over the right for Steam users to resell the games they purchase on the platform. The Federation of German Consumer Organizations (VZVB) is going to court, stating that Steam users who have purchased games, own those games, and should be able to do with them as they please, including reselling them. Often times Steam users are limited in this regard due to the way downloads are associated with specific accounts, rendering any online component unplayable. Carola Elbrecht, project manager for VZVB's consumer rights in the digital world is leading the charge.

Because Valve forbids its users to sell or transfer their accounts to another person, the exchange of games that can only be played online is impossible, she said. This means that a Steam user only partially owns games, Elbrecht said. "If I pay the full price for a game, then why am I not allowed to do with it what I want," she added.

This obviously isn't a new question for us here at Techdirt. It's been a point of logical frustration for consumers that content producers often seem to want their output treated like property when it suits them, but as a service or license when it does not. This leads to, at the very least, the appearance of double-dipping on the part of content producers. For gamers, where used games are such an intregal part of the marketplace, the frustration often boils over. In my estimation, it's quite difficult to draw up a logical proof for limiting the rights to a product for the consumer while strengthening the rights for the producer. Such an arrangement is simply too one-sided in who is giving up whose rights.

Some may note that this isn't the first time VZVB has sued Valve over similar grounds. In 2010, a court ruled against them over whether or not refusing to allow Steam users to transfer their user accounts violated German law. The times, as they say, appear to be a-changin'.

The Court of Justice of the European Union (CJEU), however, ruled in July that the trading of "used" software licenses is legal and that the author of such software cannot oppose any resale. While the CJEU's case is not exactly the same as the current litigation against Valve, the VZVB reckons that the ruling gives sufficient basis for a new lawsuit, Elbrecht said. She expected the litigation to go on for years, and it will probably end up at the federal court again, she said.

At worst, the new ruling opens the door for this suit and perhaps sets a bit of a legal baseline in how to view these types of restrictions. It likely isn't any kind of slam-dunk case and there's no assurance any ruling will even go VZVB's way, but there's something else to consider: Valve has an extremely unsympathetic stance on their hands. While complex legalities and backdoor TOS language may rule the day in court, it likely won't in the court of public opinion. Sticking to their guns on something like this is a wonderful way for Steam to lose, er, steam in gaining a faithful fanbase.

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Filed Under: copyright, first sale, germany, video games
Companies: valve

53 Comments

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:Lobo Santo (profile), 1 Feb 2013 @ 8:52am

Crampons for cramps.
We can hope this will set a global precedent concerning stupid EULAs and the enforceability thereof...
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Ninja (profile), 1 Feb 2013 @ 9:00am

Sticking to their guns on something like this is a wonderful way for Steam to lose, er, steam in gaining a faithful fanbase.

I see what you did there!

On a more serious note I hope this sets a huge precedent. Maybe the companies will stop with the online only bs if they are forced to allow reselling.
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Anonymous Coward, 1 Feb 2013 @ 9:04am

I sure hope this will lead to the ability to transfer licenses from one person to another, for-fee or not. There is no reason at all why you can't at least use steam to transfer a license temporarily (loan your copy to a friend) using steam. Heck, steam would have a way of enforcing one copy-at-a-time with it's always-online service.

It does appear that Steam was already heading in this direction already, though. The implementation of the steam wallet, and recently the ability to sell in-game items from select games can be easily expanded to allow for the sale of -at least- gift items, if not already added-to-account games. They could (and likely will) take a small cut of it, which could even give some proceeds to the original game developers.
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WysiWyg (profile), 1 Feb 2013 @ 9:20am

Arguing the wrong point.
I think that arguing about transfer of whole accounts is the wrong approach. It would make more sense, at least to me, to argue for the transfer of games between accounts.

It could easily be set up so that Steam has an "in-house" used game market, but you don't HAVE to use it. You can sell your game outside of it, and transfer it for free on Steam. Only you loose the guarantee that you will actually get your game, if someone decides to screw you.
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Ninja (profile), 1 Feb 2013 @ 9:20am

Re:
I still don't like it. Why can't me and my friend BOTH play during the loan period? Why doesn't Steam offer a system where you can GIVE free X days trials of the FULL game to your friends once every Y months? Or even better why don't they offer DISCOUNTS for the friends that buy the game you let them try (and give you credits to buy, say, digital perks)?

It's all there, all possible.
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Anonymous Coward, 1 Feb 2013 @ 9:32am

Reasonable
I imagine a huge reason companies are willing to sell games cheap on Steam is that they cannot be sold. Its probably somewhere in their agreement that the games cannot be sold between players. Plus Valve is getting a cut of every sale, and second hand would hurt them unless they got a cut.

However I would love to have the power to sell games that turn out to be rubbish. Valve doesn't really offer a facility to demand refunds, except when a game is simply broken. If a game turns out to not be fun, or disinteresting, I should be allowed to sell it on.

Maybe Valve could charge a transaction fee for selling games, if it would make the process financially viable for them.
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Ninja (profile), 1 Feb 2013 @ 9:33am

Re: Reasonable
If a game turns out to not be fun, or disinteresting, I should be allowed to sell it on.

Any game should be refunded if you don't like it in the first week or 10 days.
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Dave, 1 Feb 2013 @ 9:37am

Re:
For those who are not familiar with Steam:

You CAN give/transfer a purchased game to another user. This is per-game. You do NOT want to transfer an entire account, that's just ridiculousness. Like arguing that someone should transfer an entire itunes account instead of just a purchased album.

So if we're both steam users and I want to sell you a game for $20, you give me the $20, I can gift it to you. You have my license now. Download and enjoy.
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Duke (profile), 1 Feb 2013 @ 9:38am

Been waiting for this to happen...
I've been waiting for this sort of thing since that June ruling (covered by Techdirt here). While the original ruling had a few loopholes in it, there is a good chance consumer organisations could start using it across Europe to allow for resale etc. of non-physical products. Which could be interesting.
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Trevor (profile), 1 Feb 2013 @ 9:43am

Um...
So it's ok to resell used games that you download from Steam, but god help you if you try to resell music that you download from iTunes.

What's the difference again?
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Anonymous Coward, 1 Feb 2013 @ 9:45am

If you do not like the terms of a service then do not use the service. Valve is not forcing people to buy games from them. It is a voluntary transaction.
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Ninja (profile), 1 Feb 2013 @ 9:46am

Re: Um...
That. I'd go further and tell you that music itself should not even be paid.
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Ninja (profile), 1 Feb 2013 @ 9:48am

Re:
I'd love if people actually went without for a change. Many companies would be put out of business.

They are not forcing but they can offer a better experience. Let us see what the law has to say about that. I'm sure if Steam doesn't like the law they can ignore it, right?
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Anonymous Coward, 1 Feb 2013 @ 9:49am

one of the reasons people pirate is because of the stupid restriction that when you buy something, it isn't bought, it's only then licensed to the purchaser. how bloody ridiculous and one sided is that? tell me other products except on line purchases of games and other digital files that are restricted in the same way? if i buy a car, it's mine to do with what i want. if i buy a TV, it's mine to do with what i want. if i buy a game i have to download 50 gig of extras before i am allowed to inject the license and play, but then cant do what i want with it. same with music and books. the trouble is, these people have been allowed to bend the rules, all with government and courts backing, to suit themselves, contrary to the consumer. the same people who advocate these rules would go fucking ape shit if they had to do the same thing when selling something they no longer wanted. but that's the difference between the, and us!
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Shmerl, 1 Feb 2013 @ 9:53am

Valve's problem is promotion of DRM in Steam. For DRM free games better use to GOG or Desura.
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WysiWyg (profile), 1 Feb 2013 @ 9:54am

Re: Re:
You can!? How?
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WysiWyg (profile), 1 Feb 2013 @ 9:56am

Re: Re:
The difference would be that Steam might have a good argument that loaning the game as originally described would be analogous with loaning a physical copy of the game, and thus defensible in court.

Your suggestion would most likely end in a VERY large settlement to the publishers.
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WysiWyg (profile), 1 Feb 2013 @ 9:58am

Re: Um...
The difference is in the DRM. Steam have a way of making sure that the game is actually transfered, iTunes or anyone else do not.
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Chronno S. Trigger (profile), 1 Feb 2013 @ 10:13am

Re: Re:
"You CAN give/transfer a purchased game to another user."

Really, how? I've been poking at Steam for the last 10 minutes looking for it, but I can't find anything like that. The only thing I know you can do is gift a gift you haven't redeemed yet.
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gorehound (profile), 1 Feb 2013 @ 10:15am

Simple with Digital Files;

1.You do not even own what you just bought
2.You are forced to keep your stuff in specific Hardware
3.your home is empty with no Collectibles but you have a cool looking external Drive or more than one
4.you can not leave anything to your Heir or Heirs

Call me a Dinosaur if you want to.I love my physical items.I own a 16 Grand Appraised Rare Book Library among other Collectible things I own.
I own this stuff.I have the full Right to Resell it.My Son is already in my Will to receive my stuff.My Guests are amazed at the old Books and Pulps, Etc they see so perfectly Displayed and shelved in Alphabetic Order, ETC.
People love seeing the old stuff.
I do not mind if you call me a Dinosaur !!!
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Anonymous Coward, 1 Feb 2013 @ 10:17am

It's for all games that use Steam
Bought a game in a hurry at Best Buy. Turned out the DVD required Steam. Can't re-sell or give it away. Just sayin, it's not just Steam bought/downloaded games.

This is why my friends & I share Steam accounts.
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angelbar (profile), 1 Feb 2013 @ 10:22am

Re: Re:
Nope... thats false:

https://support.steampowered.com/kb_article.php?p_faqid=549#gifts-whatare

"Also note that you may only gift new purchases�you may not transfer games you already own.That�d be like wrapping up and presenting the toaster you�ve used every morning for the past year."

The last sentence it's a jerk reasoning, how can be a digital good be diminishied from been used?
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A Non-Mouse, 1 Feb 2013 @ 10:23am

Re: Re:
"You CAN give/transfer a purchased game to another user."

That is not entirely true. You can purchase a game and give it to another account (that's called "gifting") but you have to specify it as a gift at the time of purchase. When something is purchased as a gift, there are only 2 things you can do with it: Give it to yourself or give it to someone else. Once a game is linked to your account you cannot transfer it to someone else, even if you've never downloaded/installed/played it.
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Jay (profile), 1 Feb 2013 @ 10:31am

Re: Re: Re:
Don't do that... That's a quick way to get your account banned...
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Jay (profile), 1 Feb 2013 @ 10:32am

Re: Re: Re:
Don't do that... That's a quick way to get your account banned...
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Anonymous Coward, 1 Feb 2013 @ 10:36am

Factual correction
Steam is not always online, though they could probably implement such a requirement fairly easily for a loaning system.
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fb39ca4 (profile), 1 Feb 2013 @ 10:45am

Re: Re:
You can do that on some games right now, it's called Guest Passes, though it is up to the publisher whether they will allow them.
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fb39ca4 (profile), 1 Feb 2013 @ 10:47am

Re: Um...
Can't you resell music with ReDigi?
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PRMan, 1 Feb 2013 @ 10:48am

Re: It's for all games that use Steam
I read that one guy sets up a new Steam account for every Steam game he buys. Then he sells the whole account to someone else.
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Anonymous Coward, 1 Feb 2013 @ 10:49am

I would imagine the 3rd party publishers are the biggest hurdle to this and not Valve themselves. Publishers are already fighting physical 2nd hand sales as much as possible. I think they would have a stroke if Valve offered to let users trade their purchased games.
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DannyB (profile), 1 Feb 2013 @ 10:50am

Re: Re: Um...
> The difference is in the DRM. Steam have a way of making sure that
> the game is actually transfered, iTunes or anyone else do not.

Excellent argument for why all of our computing devices should be government mandated to be locked down and subject to control from a central point. For your protection. That way content owners and the government can ensure that you are only consuming {listening | reading | watching} content that you are supposed to be watching.

As a side benefit, it would prevent unauthorized content from ever being developed. Just as for a game console, or an iPhone, you have to go through the device vendor in order to market your work; all musicians should be subject to approval from the RIAA, and motion picture or video talent should be subject to approval from the MPAA. No more of these pesky YouTube kids stealing money from Hollywood by diverting people's attention.

Perhaps at some point, and lobbyists willing, all forms of entertainment of any kind will be controlled for our protection. No more amateurish stuff. Even kids learning how to program need to be controlled and guided into the right technologies, tools and languages that they should be using.
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Anonymous Coward, 1 Feb 2013 @ 11:01am

I think it would be cool to trade and sell games (For logistics sake, only with other registered Steam users. Should be easy to set that up at least.) however I wonder how much of the restrictions are not due to Steam but rather the publishers who hate used sales and will do everything to stop it. Don't get me wrong, Steam is not entirely blameless here if they're not making an effort, but I don't think the entire blame lies on them.
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Anonymous Coward, 1 Feb 2013 @ 11:12am

Re: Re: Re:
You can also buy games as gifts and give them later, but once you "use" them, you can't gift them anymore.
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Trevor (profile), 1 Feb 2013 @ 11:14am

Re: Re: Re: Um...
Lets expand this to it's illogical conclusion: Why not DRM guns?

Think about it: The NRA is the ONE LOBBY that is AGAINST control of ANY KIND.

I don't personally agree with the NRA at all, but maybe the *IAA should take a page from them. Not the crazy page though, they've already mastered that.
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Kurata, 1 Feb 2013 @ 11:34am

Well then, I'll just resell the games to "someone else" and go around the vac ban i have, since it seems i can now resell used games online! Unless they decide to transfer all the bans that were also put in place on said account depending on the game.
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Anonymous Coward, 1 Feb 2013 @ 11:51am

Re:
With sales happening as often as they do, games getting discounted for 10%-75% off the retail price, getting "older" games on Steam as resale price is stupidly easy.
And it's not like games stop selling on Steam. They'll never run out of copies cause it's all digital. So you can wait for a sale a buy a game at a discounted price just like you would in the stores.

What benefit are we actually getting by reselling a digital download beyond just grabbing a few bucks?

If Valve ever did make this possible, in all likelihood they would be taking a cut of the resale money and so would the publishers. You might get 20%-40% of the original price you paid and they would "resell" it marked up on a 25% discount day. Heck, it could only really work if you already had a buyer. You couldn't sell it back to them since you're not giving them anything they don't already have.

This just seems like a bad idea and unnecessary punishment on the one digital distributor that managed to turn me into a paying customer.
What will actually be accomplished from this? Buyers of "used" games can already find frequent discounts.
Sellers will get a few bucks off a game that in all likelihood wasn't even on the hard drive at the time of resale.

Sorry, but considering the service that Steam provides me and how it allowed me to support the industry and studios I love while living in a place where I simply don't have the possibility of going to a store and buying a hard copy, I just can't agree with this motion.
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Jay (profile), 1 Feb 2013 @ 12:07pm

Re: Re: Re:
You buy it as a gift.

But if you try to buy it for others for a cheaper price, Valve will ban your account.
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Anonymous Coward, 1 Feb 2013 @ 3:37pm

Re: Re: Reasonable
Most gamers would burn through short single player games and demand refunds. Multiplayer games would be the only ones that wouldn't suffer.

A 12 to 24 hour grace period on refunds would work tho. Or allowing digital rentals.
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Rekrul, 1 Feb 2013 @ 4:05pm

Re: Factual correction
Steam is not always online...

Disconnect your internet before starting a Steam-crippled, single-player game and see how well it works when Steam can't phone home.
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Anonymous Coward, 1 Feb 2013 @ 4:08pm

I wholeheartedly support this suit whatever the chances of winning are.

Heil even a partway restoration of individual property rights!

HEIL!

HEIL!

HEIL!
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Rekrul, 1 Feb 2013 @ 4:19pm

Valve has an extremely unsympathetic stance on their hands. While complex legalities and backdoor TOS language may rule the day in court, it likely won't in the court of public opinion. Sticking to their guns on something like this is a wonderful way for Steam to lose, er, steam in gaining a faithful fanbase.

Not a chance. Steam users are like Apple Fans. No matter what crap the company pulls, they'll still lap it up.

People even defend it when they change Steam's system requirements, thereby retroactively changing the system requirements of all the Steam-crippled games on the system.

Call me crazy, but there's just something not right about needing a current operating system to run a game that was written 15 years ago.

What happens if they change Steam's requirements to Windows 7, but some of the older games won't run under Win7? Are they going to go back and patch those games?
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Anonymous Coward, 1 Feb 2013 @ 4:46pm

Re: Re: Factual correction
Since the begining of last year, it has been working very well. But before 2012, yeah, it used to just give up and lock.
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Anonymous Coward, 1 Feb 2013 @ 5:01pm

Re:
I agree with you that Valve could try to work more in making sure the older games it sells online work in more modern systems adequately.

Knights of The Old Republic and Hearts of Iron 3 are among the most frustrating games to buy in a sale, due to the sheer amount of work needed to make them run. I've seem a lot of people angry because of them.

But of course, its hard dealing with third parties, as the War Z controversy showed.

Personaly, since Steam gives me a licence code that i've saved, i just backup my games on DVDs. If someday Steam goes down, and it interest me, i'll just reinstall.
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G Thompson (profile), 1 Feb 2013 @ 10:30pm

Re: Re: Re:
Loaning a game is not a legal problem in most jurisdictions as long as the originating machine has no copies of the software still on it. The license is loaned, and since the license stippulates how many mdevices the work can be held on and used at any one time this is fine. Though with loaning a slight logistical nightmare to say the least.

Interestingly with the way Steam works the logistical problems can easily be sorted out since the loaning (transference) or licenses (the keys) to other accounts can be EASILY implemented allowing the other party to immediately access the software (in a new download) and denying the originating party the use of the software since the keys don't match anymore (whether the actual software is still on the machine is moot since the license keys aren't anymore).

Steam know this, they just don'[t want to do it. Security has nothing to do with it it is all about control and money.
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Anonymous Coward, 2 Feb 2013 @ 7:53pm

Re: Re: Factual correction
It works quite well actaully.
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Aaron Martin-Colby (profile), 3 Feb 2013 @ 11:10am

Re: Re:
For many of the games, it isn't Steam's choice. The restrictions were put on them by the publishers.

And for many of the smaller companies, their games are so cheap to begin with that the concepts of loaning and/or discounts lose a great deal of value.
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Aaron Martin-Colby (profile), 3 Feb 2013 @ 11:16am

Re: Crampons for cramps.
One can hope, but even if this passes, it won't affect anything in other countries. The lobbying power of copyright interests is too great.

I don't think it much matters, at least as regards games and installed software. Technology and the market are moving to obviate these things, and no matter how onerous EULAs get, they can't stop the march of time.

Now EULAs for online services? That needs real change.
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Tex Arcana (profile), 3 Feb 2013 @ 11:17am

Re: Arguing the wrong point.
Oh, yeah... this alone could save Steam hugely, both in the future, and in fan base.

Think about it: I have a batch of games, And I'm tired of one of them; and WysiWyg wants to buy it from me.

I post it on the "GameMarket(TM, fuck you Valve!)", WW pops in and buys it from me for the agreed-upon price, Valve takes their cut, passes the cut the publisher will get; and everyone is happy.

I could post every game I've got for sale on the GameMarket(TMFUV), except for a few of my favorites. I've make whatever I'd make; Valve would make a cut, and so would the publishers.

What's that you say?? Everyone won't buy anything new, just wait for the GameMarket(TMFUV) to have them? Sure, okay; but Valve and the publishers could make special packs that go with the newest first-run titles, that could NOT be sold via GameMarket(TMFUV). Simple enough to do. And still everyone gets a cut, no matter how new or how old. Hell, they could put a limit on how old a game has to be before it can be sold; or if it can be sold at all.

The coding end of it should be simplicity in and of itself. Implementation, even moreso. Everyone wins, ESPECIALLY because everyone gets a cut.

Now watch as the MPAA/RIAA/MAFIAA jump in and say this would result in the implosion of the world because this sort of ILLEGAL IMMORAL TRADING will result in a massive BLACK HOLE opening up at Valve headquarters, and suck the entire planet into said black hole, and all of us down into HELL!!!

"I say unto THEE/Dig down deep, and give unto MEEEE!"
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WysiWyg (profile), 4 Feb 2013 @ 12:49am

Re: Re: Crampons for cramps.
Actually, since the case is based on a decision by the European Court, it would most likely affect the whole of Europe/EU.
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Anonymous Coward, 4 Feb 2013 @ 1:10am

The part of this article that caught my attention the most was "If I pay the full price for a game[...]"

The most glaring lack of regulation in digital sales of games, music, other media is that these companies are saving money on physical production and shipping costs yet instead of passing those savings off to the consumer they are charging the same amount as the physical copy and raking in even more cash.

They are charging us the same for a product we can do less with.
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Ninja (profile), 4 Feb 2013 @ 1:28am

Re: Re: Re:
Nice. It should be the default.
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Ninja (profile), 4 Feb 2013 @ 1:30am

Re: Re: Re: Reasonable
If the game is good it won't happen. You will want to grind more, walk through the extras ingame etc etc.
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Anonymous Coward, 4 Feb 2013 @ 8:24am

Re: Re: Re: Factual correction
There was a fairly simple workaround for that problem, but it wasn't very well known. (it was also totally asinine so you wouldn't discover it naturally.)
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