
French court rules Steam games must be able to be resold - abbe98
https://www.engadget.com/2019/09/19/french-court-valve-steam-resold/
======
jsnell
Valve's defense in this case was puzzling. It appears that they tried to argue
that Steam is a subscription service (which are exempt from secondary sales),
which was just obviously bullshit. From a bit of reading, it seems like there
would have been at least two much stronger defenses available. First, the way
the 2012 CJEU decision was actually interpreted in practice by other lower
courts incredibly strictly[0], requiring outrageous levels of proof that the
secondary seller no longer had access to the sold software.

And then separate from that, the core of the 2012 court decision was the 2009
"legal protection of computer programs" directive. But in 2014 (in the
Nintendo vs. PC Box case) the CJEU basically ended up ruling that games did
not fall under that directive due to how heavy they are on non-software
(audio-visual) content[1].

I'd be really curious why Valve's lawyers ignored these avenues and went for
the ridiculous subscription option. (And equally, I'm curious about why France
was going after Valve when PSN, Xbox Live, Apple App Store and Nintendo eShop
appear to be softer targets).

[0] [https://gameslaw.org/the-end-of-the-usedsoft-case-and-its-
im...](https://gameslaw.org/the-end-of-the-usedsoft-case-and-its-implications-
for-used-software-licences/)

[1]
[http://curia.europa.eu/juris/document/document.jsf?docid=146...](http://curia.europa.eu/juris/document/document.jsf?docid=146686&doclang=en)

~~~
dzhiurgis
Cross country limitations is what pisses me off the most with App Store...

Got a Ryanair flight, but outside EU? Can’t download the app and need to print
your boarding pass (or pay half the ticket price to do it in the airport).

Got family abroad? Yeah no family sharing for you (even for storage).

Edit: did I say most? App reviews are downright fraud.

~~~
shados
Well, this article shows why companies do that, no? If you operate in all
countries you have to follow all their laws, which isn't realistic, so you
have to pick and choose your markets (or get sued when you inevitably fuck up)

~~~
dzhiurgis
Do they not sell the tickets to people outside EU?

------
bdz
>For Valve, it would only apply to tangible games, not to online licenses.
According to the UFC, the initial purchaser must be able to resell these games
second-hand, even those acquired on the platform.

Sounds like physical games that must be activated on Steam to be able to be
played. Once you activate them you can't play on another account even if you
have the DVD (but sometimes it's just a code in the case). That's an opposite
of most physical console games that can be resold and played on other
consoles, under other accounts.

For example I have The Evil Within phsyical collector's edition (awesome game
btw) and it comes with a Steam code. I can't play the game under other Steam
accounts. And the physical DVDs are worthless, I can't resold them. On the
other hand if I would have bought the game on PS4 or XBox One I could just
give the disks to someone else and they can play the game no problem.

~~~
astrobe_
Even with console cartridges what you buy is not the hardware but a license to
use a copyrighted material.

Copyright laws does not restrict the buyer from reselling, that's called
"first sale doctrine" or "exhaustion of rights". You can resell books and
movies, you should be able to resell game licenses.

~~~
sbarre
What about digital movies? Or eBooks? Can you resell those after you've
watched them?

Not arguing for either side here, just saying digital goods can be a bit more
complicated than you're making them out to be.

First sale doctrine made sense when part of the cost of an item was the
physical product itself, but with digital products, there's a near-zero
production/distribution cost, so you're really only paying for the right to
consume the media (book, movie, game, music, etc)

So in that case, what exactly are you reselling at that point?

~~~
astrobe_
> So in that case, what exactly are you reselling at that point?

Yes. Reselling is actually equivalent to a refund from the authors'
perspective. Problem is that people are too often reselling to buy their next
thing rather than because they are _dissatisfied with the product_. On the
other hand, refund policies based on arbitrary rules are not satisfying, too.

~~~
ryukafalz
I’ve been able to buy a book, read it, then sell it to pay for the next one...
well, forever. Why is this a problem?

~~~
sbarre
It may not seem like a problem for you, but every time you do that, someone
else gets to consume the creator's work without the creator getting paid,
which reduces the incentive to create.

In the long run, the problem may be less books to read because less people
will write them.

It is of course possible to look at this only from one side, but that approach
- from either side - is not sustainable.

~~~
ryukafalz
But, again, this is how property has worked for a long time. (Since its
invention?) It’s been sustainable for thousands of years. Why is it not
sustainable now?

------
ineedasername
If this ruling holds, my expectation is simply that games will sell at higher
prices, or keep their original prices instead of having frequent Steam sales
with deep 70-80% discounts. That would keep the after-market price higher as
well, and then sellers could have more modest sales that just seek to undercut
the secondary market for a few days. I also think people would be more willing
to purchase at higher prices if resale were possible: I used to buy a lot more
games at full $60 price when it was all physical and I resold most games a
month later for 60-70% of the purchase price. I'd experiment a lot more with
games I wasn't sure of. Now I only pay that much for games I know I'll like,
and otherwise wait for the inevitable deep sales.

I would also not be surprised is Steam sets things up so that they collect a
sizable transaction fee like the iOS app store for such transactions, and that
publishers demand a cut of those proceeds as well in order to publish on the
platform. In fact it would be forward-thinking of Steam to initiate that on
their own. Finding a way that everyone gets what they want may be the best way
forward here.

~~~
K0SM0S
I share a lot of your views but don't forget, this is only about the French
market; in all likelihood Steam would either comply only locally (though other
countries might follow suit, literally, especially in Europe) or pull out
entirely from France (unlikely imho, it's still a rich market, but who knows
how crazy things can get nowadays).

~~~
ineedasername
I'm not sure it would only be France. The law in this case is tightly bound to
EU laws on the matter, and so it seems a pretty good chance this would end up
forcing Valve to do this for the entire EU. That would complicate things quite
a bit beyond the EU too: If consumers have a right to resell, can Valve
abridge that right to prohibit resale by an EU citizen to someone in the US? I
suspect that question too would need to be tested in courts.

~~~
K0SM0S
Oh you're probably right about this. It's probably integrated at the EU level
now. However, a precedent in 1 one country isn't binding at the EU level,
you'd have to attack at the Union level to force a Union-wide judgement
(afaik). Meanwhile, individual countries, likes States in the US I suppose,
may sue these digital providers.

Your point about cross-country (e.g. France <-> USA) transations is very, very
interesting. Afaik, with physical goods, I'm not allowed to take an EU game
and sell it second-hand in the US because the product is not allowed in the
first place in that market (if you remember, console cartridges weren't even
the same format sometimes, and nowadays I don't think consoles discs can be
played in any region). So there's that, I can see the gaming industry replying
that it's only normal to prohibit products from crossing geographical markets.

Which I always found one of the worst attack on customer experience, but I
feel internet in general is about to become more and more restricted in its
commercial use, just as much if not more than the physical world ever was.

------
XorNot
Valve could avoid most of this trouble if "sharing your library" actually
worked on the level of individual games and wasn't functionally identical to
just giving someone your password for the entire account.

It is ridiculous that my partner and I can't play different games which I have
bought at the same time via Steam.

I'm all for Valve getting a fire lit under their ass for this.

------
dmos62
Digital assets can be duplicated for free, but can't be created for free. That
holds a conflict, which we've not been good at solving. So far, it's been
phrased as: do we forbid digital asset duplication or do we make the creators
carry the cost? There's no win-win from this viewpoint. Which is the lesser
evil: architectural technology castration or economic punishment of creators?

I'm confident that neither of those is a sustainable solution, and a more
fundamental rethink is needed. Currently I'm interested in alternative ways of
compensating the creators.

~~~
user5994461
Plot twist: digital assets cannot be duplicated for free. They require storage
and transfer.

French plot twist: There are already extensive laws to cover copying and in
fact every storage medium is (heavily) taxed to cover losses from copying.
You're actually paying few cents per GB on ALL storage mediums like
DVD/disks/SSD/usbkeys.

~~~
Fnoord
> Plot twist: digital assets cannot be duplicated for free. They require
> storage and transfer.

Digital assets have zero marginal costs. That is to say, yes, storage and
transfer is not free as in beer, but it is _very cheap_. Which is why we have
that tax to cover losses from copying. Not just in France, also in Germany,
The Netherlands, and probably many more countries in EU.

~~~
user5994461
I can be wrong but I doubt that Germany has anything similar because one way
to avoid the tax in France was to buy from Germany.

The French tax is pretty high. It could be something like 50€ out of a 150€
hard drive.

~~~
anoncake
It's a lot lower in Germany but in principle it does exist.

~~~
pixelpoet
I'm German and only just heard about this now. I wonder where the money goes,
both in theory and practice...

~~~
kaybe
[https://de.m.wikipedia.org/wiki/Pauschalabgabe](https://de.m.wikipedia.org/wiki/Pauschalabgabe)

You're paying 10€ per laptop and 3€ per mobile phone. The money is distributed
to several organizations (GEMA, VG Wort, VG Bild-Kunst,..). The right to
private copying is derived from that. Apparently they're working on an update
though, we should keep an eye on it.

------
shultays
This sounds very bad for single player story based games. Which are my
favorite type of games to play.

Digital games would be very easy to resell and a game can be easily bought
once and resold tens/hundreds of times.

Plus any kind of discount would probably mean that you devalued your game
forever.

~~~
nolok
Game resale has been a staple ever since video games exists. Gaming stores
chain have built their business' margins around it. And game would easily go
through several people's hands, not just one sale.

The only thing that may seem different is the amount of potential customers
you can reach at once by your sale, but it's not either: game resale on ebay
or amazon allow the same thing, as well as whatever local personal ads site is
popular (eg leboncoin in france).

Also, people like to own things, which is why no you didn't go and sell all
your books/vhs/dvd/... after watching them when you bought those.

Don't let the "it's digital" be used as an excuse to allow companies to strip
you of your rights, and especially don't think it's a good thing.

~~~
ketzo
> Gaming stores chain have built their business' margins around it.

But modern game studios have not; quite the opposite. The indie game industry
exists almost solely because of digital distribution, and resale would cripple
them.

~~~
nolok
Says who ? Modern indie didn't thrive because there was no resale, they
started thriving because the hard barrier to publishing got removed (first
with xbox live arcade, then steam and psn, then every store).

~~~
shultays
This makes current solution (steam/digital markets) to "hard barrier of
publishing" a less desireable solution for indies.

But I agree, I think this is a smaller problem for indies. Low cost of those
games would make people not to bother much. 40$ aaa games on the other hand
would lose a lot of bucks though.

~~~
throwawayhhakdl
I think I disagree. A used digital game has no depreciation at all. If a
middleman can wedge themselves between steam and take a cut, you could easily
imagine indie (and any) games lowering their cost substantially

The time investment of selling a digital copy of a game that is identical to
all others should be 1 second of thought and clicking if not impeded by steam.

------
comex
Note that this is from September. Not sure if anything interesting has
happened with the case since then.

------
walrus01
This legal ruling also sets a precedent for digital purchases and resale of
xbox one and PS4 games in France.

~~~
anoncake
France uses civil law so this ruling doesn't set any kind of precedent.

------
Andrew_nenakhov
Soon: all games are purely SaaS and require subscription to play. Want to play
this game on another account? Buy new subscription!

~~~
still_grokking
Wait for it…

We're already almost back to the dark-ages of "mainframe computers".

When you had to pay for every time slice to run your program (of course, on
"someone else's computer").

The age of "personal computers" is almost over again. (A "personal computer",
what a silly idea anyway. Everybody knows that only experts™ can maintain a
computer-system properly. That's nothing an "user" could do! IBM told you that
already 50 years ago. See, they've been right the whole time… /s).

~~~
lotsofpulp
Would personal computers have been so successful if high bandwidth connections
were available at the time?

------
byron_fast
I've always wanted to re-sell my Steam games. I assume Valve has a real
business reason why they haven't allowed this, since when sharing your games
locally they are better than anyone. Clearly they don't have the big company
mindset of forcing people to pay for a license on every device.

If Valve complies with this ruling I'd guess we'll find out what that reason
is. I think loot crates and the item market reveals the problem. Steam
licenses will turn into some kind of black market money laundering machine
that will be impossible to regulate.

~~~
tensor
This is all speculation, but I would guess that the main issue is legal
agreements with the publishers. The publishers don't want any game resales,
they want only new sales. Unless France can equally compel the publishers to
allow this, it might end up being that Steam is forced to withdraw from
France.

~~~
byron_fast
Maybe, but I don't see that publishers could push Valve around too much these
days.

You're right everyone wants new sales - but they've learned to be okay with
offering 90% off at some point, and smaller discounts along the way.

------
Sargos
I would love to see video game licenses as ERC-721 tokens that you buy and can
use and move between the different digital game platforms out there. If you
own the token in your wallet then the DRM or whatever system lets you play the
game. If you don't own the token then no game unless you pirate it like today.

This would allow games to be purchased at many different competing stores
(like you can with physical boxed games today) and also allow selling games on
any market out there (again, like boxed games and ebay). It keeps all of the
upsides of boxed games but since it is digital has all of the convenience of
digital downloaded games.

This concept extends to all media like music, movies, etc but games seems like
a great first use case. I hope someone at Valve pitches this idea.

------
staplor
I think this is bad; not necessarily for the consumer, but for the industry as
a whole. Reselling means that copies sold after the release benefit random
consumers, not the developer. On the other hand unresellable licenses along
with sales mean that everyone pays the same price, but the developer gets all
of the revenue. Digital goods cannot be scarce; we shouldn't treat them as if
they are.

~~~
CWuestefeld
I'm not sure if you're wrong, but it's not at all clear that you're right.

By having a real used market, there are two opposite effects on the new
market:

1) Obviously, having more choices (viz purchase of a used copy) tends to pull
prices down.

2) But less obviously, the knowledge that one can sell the game when complete
means that a buyer would be willing to pay _more_ up front. That is, today
they pay $X new, and that represents the total investment. But with resale,
they pay $X' up front, but later recover $Y later when they sell it.

The question is what is the equilibrium between these two countervailing
forces?

~~~
im3w1l
You need to consider the following strategy. Buy game, play for 20h straight.
Sell game. Physical media have transaction costs, but for digital copies it
will be as easy as pushing a button.

Either doing this is dirt cheap (say less than $1). If it is not dirt cheap,
then it means that the game must depreciate hundreds of dollars per year.
Which means the starting price must be like $1000.

People wont pay $1000 for a game, so the second case is impossible. Hence, it
means that it will be dirt cheap to buy-play-sell. This may be a big threat to
the current model.

~~~
Fnoord
> You need to consider the following strategy. Buy game, play for 20h
> straight. [...]

On average, people don't play a game for 20 hours straight. Even I could not
do this during a World of Warcraft release, and most people don't. The few who
do are outliers.

Most people sleep 8 hours a day, have a household, a job, school, etc. Even a
"weekend no-lifer" (which I suppose is more common than a "complete no-lifer")
can only play for about 16 hours a day on 2 days a week in the weekend, and
that assumes they have no real-life responsibilities. People like that are
most likely teenagers (even though these have homework).

> Either doing this is dirt cheap (say less than $1). If it is not dirt cheap,
> then it means that the game must depreciate hundreds of dollars per year.
> Which means the starting price must be like $1000.

> People wont pay $1000 for a game, so the second case is impossible.

Sorry, why must the start price be $1000? This makes no sense.

If you want us to consider a strategy, you need to present a plausible one,
with plausible data.

Right now, if you want to buy a game cheap, you can already on G2A
(circumventing things as region lock). I believe this is going to render the
need to wait for discounts (which I currently use) less. If game developers
simply quit with all and every discounts (some already do) then the resale
value will stick. The amount of people who play a game, might increase as
well, and as long as the game retains value over time the first hand and
second hand price will stay the same.

Ultimately, the model of selling licenses might have to adapt to the
situation, but that is a Good Thing IMO. The way it should work with content,
is that people invest money in it, and then these people get an exclusive
right to play it first ie. crowdfunding model. Unfortunately, the rights of
investors on crowdfunding are currently very low, but that is merely a legal
problem. You can certainly keep game licenses sparse right after release, but
it increases the urge for piracy because people in non-West can't afford.

------
drdd
Since they are treating virtual products as physical products same thing goes
for non-consumable virtual products for apps on apple devices which includes
app sale or in-app non-consumable. Maybe apple could provide this in the
future to all users with generated codes for each non-consumable transaction
for trade purposes.

------
amelius
Why don't they sell games as a subscription without upfront costs? That would
solve the problem for everyone.

~~~
Pfhreak
They do. Xbox Live Game Pass is exactly this (and there's a PC version as
well.) See also Apple Arcade and Google Play Pass.

------
boyadjian
French court is one of the dumbest in the world. That's a completely stupid
idea : A video game is sold to only one person, if it is resold, it means that
the initial selling price must cover the usage for an infinite number of users
? That is nonsense.

------
jmpman
Steam should pull out of the French market.

~~~
anoncake
Companies that think they are above the law should be thrown out of all
markets. Including the EU one.

~~~
ineedasername
That would be the opposite of thinking they are above the law. It would be an
acknowledgement that if they sell to that market, they must obey its laws. As
doing so would undermine their the viability of their business, they back out.

Thinking they were above the law would be something like, "We removed our
servers from your country, we're no longer in your jurisdiction, we don't have
to listen to you" Or some other loop-hole attempt.

~~~
anoncake
To pull out of the market goes against the spirit of the law. The French
people ordered Valve to stop preventing resale of games, not to stop doing
their job.

Besides, giving companies that kind of choice gives them power over the state
and its people which shouldn't happen in a democracy.

~~~
ineedasername
That is a rather authoritarian view of the law & power of governments that you
have there. The idea that a government, and in this case a foreign government,
can bind a company to itself and its laws, or that the company should
ethically choose to be so bound, even if the company doesn't want to do
business there any longer... It is an extreme view of government authority &
corporate responsibility to say corporations _must_ do business with markets
even when they disagree with its laws and/or it broke their business model. In
the later case it amounts to an order to operate in an unsustainable
environment.

Your view of the law & obligations of companies would have far reaching
consequences. A company would not, for example, be able to opt-out of
assisting China with their censorship initiatives, or stop business with them
all together if there was no other choice. How do you reconcile your vision of
corporate responsibility to continue doing business with that sort of local
state law?

~~~
anoncake
> That is a rather authoritarian view of the law & power of governments that
> you have there.

No, not at all. Since Valve is not a democratic organization its employees
aren't free to begin with. Restricting its owners' "freedom" to tell their
employees what to do is hardly authoritarian – freedom is about deciding what
you do yourself.

> A company would not, for example, be able to opt-out of assisting China with
> their censorship initiatives, or stop business with them all together if
> there was no other choice.

The difference is that China is not a democracy.

~~~
ineedasername
It is authoritarian for a government to be able to compel a company to do
business in its market. In the case of China vs France it's just a matter of
degree, not kind. And that degree would be just a little bit closer if your
vision of state-based compulsion were enacted by France or the EU.

There is nothing wrong or unethical if Valve makes the determination that it
cannot profitably do business with France. It happens all of the time when a
business decides it cannot profitably compete in a market where the regulatory
or tariff structure doesn't let it be successful. Due to such laws, they back
out of the market. I really don't understand how that point can be reasonable
debated. What _would_ be wrong would be for Valve to find loop holes that
allowed it to continue doing business while circumventing these laws.

~~~
anoncake
> It is authoritarian for a government to be able to compel a company to do
> business in its market.

I have explained why I disagree in this case.

> In the case of China vs France it's just a matter of degree, not kind.

It's a matter of kind. China is not a democracy, therefore it does not have a
legitimate government. For that reason alone, there is nothing immoral about
ignoring orders from Beijing.

------
SuperSandro2000
This would also apply to all other digital stores like Origin and what happens
with consumables?

------
mnm1
I think this should apply to all software one buys that can and does run
solely on one's hardware. The idea that only a license to the software can be
sold is frankly absurd and in a world of SaaS, unnecessary and destructive.
It's amazing what kind of illogical craziness our courts of law can justify in
the name of profit.

------
bobharris
How do we get this case brought against Valve (and all the others) in the US?

------
jokoon
As an european, I really like how the EU is progressively standing up to the
US on many aspects.

I know it's very subjective, but beyond the islamic anti-americanism, there
are other more moderate, valid views that the US is often abusing its power.
It applies to monopolies, uber, airbnb, GAFAs, tax avoidance, and many other
things.

California has its own GDPR equivalent.

------
martin1b
Half Life : Alyx, coming soon to everyone, except France.

------
legopelle
This is great. Anything that may only be "owned" by one person at a time
should categorically be able to be resold. Licenses too. If you're a proponent
for capitalism (which I guess all publisher decision-makers are), then let the
market work. The profit motive will solve all problems.

~~~
theptip
I think this means that either prices for the first copy sold will go up, or
profit from games will go down, since the marginal late purchaser will be
getting their copy second hand instead of purchasing it new. As a customer of
mostly non-AAA / indie games (I.e. often borderline profitable), both of these
outcomes are a negative for me.

If you are a customer of AAA games, and/or if you think there is no more room
for prices to go up, this would be a good outcome for you.

I think “[the market] will solve all problems” is a bit too simplistic an
analysis.

------
Causality1
I love this. We are so desperately in need of digital consumer protection
laws, like mandatory labeling for the minimum length of time server-dependent
products like home automation or games will be supported by the manufacturer.

------
chongli
Reselling games on Steam seems so silly to me. Many of my games cost less than
$1 because I bought them in bulk during the big seasonal sales. What am I
going to resell them for 50 cents? Too much effort!

Maybe it makes more sense to resell those $80 AAA games, but I get the feeling
those who are thrifty enough to want to resell games all the time are probably
fine with waiting until they go on sale anyway.

~~~
dillonmckay
Why do you have to resell it for less than you paid?

~~~
wernercd
Why would you expect to get what you paid for on resale?

Old things aren't worth as much, generally...

~~~
landryl
If he got his games in a bundle as he stated, and the bundle do no longer
exist,, he could resell these games at a price closer to the standalone price,
usually higher

~~~
friendlybus
This will guarantee the death of those bundles. It will give a few hundred
dollars in profit to whoever bothers to collect on the resale arbitrage and
change the sellers landscape for a decade or more.

