The French are steamed about Valve's 'unfair' game resale ban

A French consumer association is suing Valve over elements of the Steam user agreement it considers unfair and illegal

A French consumer association, steamed up at the way major online game platforms prohibit the resale of games, is seeking to make an example of Valve Software, operator of the Steam platform.

UFC-Que Choisir has asked the High Court of Paris to rule that certain terms of Valve's user agreement are unfair and in breach of European Union law.

Resale rights are not the association's only concern: In all, it considers 12 of Valve's contract clauses unfair or illegal. The others in dispute concern Valve's refusal to convert virtual, in-game currencies back into the real money they were bought with, and Valve's attempts to absolve itself of legal responsibility for, well, pretty much anything, according to Justine Massera, a spokeswoman for the association.

As a processor of personal information, the company should take steps to secure the data, she said, but in the contract Valve says it takes no responsibility if accounts are hacked -- even though, by Valve's own admission, 77,000 Steam accounts are hijacked and pillaged each month.

Valve also reserves the right to change the contract terms unilaterally. Players who don't want to accept them have no recourse but to close their account.

And, said Massera, because of the resale ban, "If a player closes his account, he loses all his games."

UFC-Que Choisir sees this as unfair because if the games were bought on physical media, resale would be allowed -- and there is no reason not to allow resale since the physical and downloadable games are often the same price.

The association is asking for clarification from the Court of Justice of the European Union on whether the doctrine of first sale applies to downloaded games as it does to physical copies. This provision of copyright law allows the buyer of a copy of a copyright work to sell that copy without the rights-holder's approval.

Valve and games companies like it maintain that they are not selling a game, but merely licensing the right to use it.

The CJEU ruled in July 2012 that the resale of software licenses is legal, in a case involving Oracle and German software reseller UsedSoft that began over a decade earlier, when software was distributed on CDs.

But the question of video game resales is more complex, as their publishers claim that they consist not only of software, but also of audiovisual elements and scenarios, all of which are protected by copyright, making it difficult to directly apply the Oracle ruling, Massera said.

"It's the argument that all the platforms have used," she said.

But the question is crucial for online games stores: "If the Court of Justice allows resale, it will disrupt all their business models," she said. "It would apply to all things digital: music, e-books...."

If the association wins its case, then the unfair contract terms will be declared void for all Steam users.

Valve is not the only company blocking the resale of downloaded games: UFC-Que Choisir also reviewed terms and conditions imposed on gamers by Microsoft, Sony, Electronic Arts and Blizzard, finding similar problems with all of them.

Those companies have dodged a legal bullet, for now, as UFC-Que Choisir decided to take Valve to court first because its online sales platform was the biggest.

The association expects the official copy of its complaint to reach Valve's European headquarters in Luxembourg next week, but it has already sent a courtesy copy to the company's Paris lawyer.

Valve's press spokesman did not respond to a request for comment.

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Peter Sayer

IDG News Service
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