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French high court rules that Steam can’t ban users from reselling digital games (vg247.com)
132 points by lultimouomo 26 days ago | hide | past | web | favorite | 166 comments

Surprised to see so much sentiment against this ruling. Digital software sale and distribution is just supposed to make software management easier and faster. A license is the same regardless of wether it's physical or digital. Why shouldn't this apply to resale of said merchandise?

I rarely say this- but the French really make a ton of sense here.

A license is not the same for a physical copy vs a digital copy.

A physical copy is an actual tangible thing, and courts have ruled that licenses travel with the ownership of the actual thing--i.e., copyright law does not trump property law.

A digital copy is an ephemeral, transitory thing. The very nature of a digital object means that the object used/viewed/etc is not the same digital object that was stored (i.e., the copy on your hard drive is not the copy in memory, though they may be identical).

Copyright law is entirely about restrictions on copying things and digital goods are trivially copyable things.

The French law makes little sense. The distinction between physical goods and intangible items exists for a reason in copyright law, and indeed is inherent in other parts of EU law, such as with respect to e-books. Importantly, earlier this week the EU itself ruled that ebooks cannot be resold (see https://www.publishersweekly.com/pw/by-topic/international/i...) and the French court's reasoning in this case is entirely contrary to the reasoning of the EU.

Expect this law to be overturned, or for PC game prices to go up dramatically in the EU if it is not.

>A license is not the same for a physical copy vs a digital copy.

>A physical copy is an actual tangible thing, and courts have ruled that licenses travel with the ownership of the actual thing--i.e., copyright law does not trump property law.

>A digital copy is an ephemeral, transitory thing. The very nature of a digital object means that the object used/viewed/etc is not the same digital object that was stored (i.e., the copy on your hard drive is not the copy in memory, though they may be identical).

...as defined by courts, but not this one. It is those things because we say it is. In another reality it's perfectly reasonable to assume courts ruled that there is no difference. It's a situation which benefits the producer, not the consumer.

I agree that it's tricky because you also can't allow for a buyer to produce copies and undercut you but, at the same time, I am getting a low less with my money.

>or for PC game prices to go up dramatically in the EU if it is not.

There has been a second hand market for games since they have existed (which was also fought against btw, along with rentals.)

So if a license is what's on the disc. You can sell a license. The only difference is that it's on the hard disk of your computer. Steam can still ask for a portion of the proceeds as a digital marketplace.

It absolutely makes sense. All content licenses should be resaleable. But this will have serious ramifications for how we "buy" content.

If you can buy a game, play it for 100h and them hand it off to somebody else who can do exactly the same, with the publisher/developer/store are getting nothing from those transactions, they are quickly going to find another business model. There is no degeneration like there is with physical goods. There is no reason why anybody would prefer new.

And while publishers only lose a potential sale, vendors like Valve actually have to service a new customer (bandwidth, save storage, etc) without extra pay. They're not going to go quietly here.

And that will quickly turn into publishers and vendors both ceasing to sell software licenses. You'll still pay full price, but you'll get 100 days play, or a few years for a multiplayer. Or membership services like Origin Access. Or straight up gaming as a service (eg Stadia).

So while this is great for owners of existing software licenses in the EU, we shouldn't celebrate this ruling. We're about to own even less than we historically have.

Seems like a great time to separate the billing of license to play from value added things like data storage & bandwidth.

And how do you plan on doing this without any of:

- $1 game with $49 infrastructure fixed price that you have to pay on every resale

- monthly subscription to play game (which consumers do not like)

- "free to play" nonsense

> - $1 game with $49 infrastructure fixed price that you have to pay on every resale

Why would data storage & data bandwidth be upfront fixed price? Bill on usage.

Well the real cost of bandwidth is cents...

Why cannot they go the old (boxed-CD era) model of selling games for marginally more and not tying a sale to their services? I've always viewed Steam as an app store that comes pre-loaded with malware (since I don't use any features other than buying and updating games, yet I've had games be unplayable many times due to various Steam issues or internet glitches that broke Steam). I'd be super happy (for the French if no-one else) if they go back to just being an app store and have an additional fee for their other pointless "services".

The reason people don't infinitely resell a physical copy is not degradation - I still have CDs from probably 1996 that work fine. It's because people generally want to buy new games.

Greed is not surprising, but understandable you might have thought this crowd was a bit better than the average.

Question: If it makes sense for games to be resalable then why not tickets for cinema or concerts? Ianal afaik both are contractual agreements.

"Although its unlikely a policy change this momentous would be made, Valve has a history of making changes based on court rulings it’s involved in."

Sooo...Valve has a history of changing its policies to follow the law?

> Sooo...Valve has a history of changing its policies to follow the law?

The article isn't well written, but I believe the point is about Valve making the change worldwide, even though their legal obligation is just to do it in France (or possibly the EU).

From the article:

> the high court ruled that, under European Union law, Steam customers have a right to be able to resell ‘dematerialised’ goods, i.e., digital games on Steam.

IANAL but while this is a French high court, they have clearly interpreted EU (not domestic) law, so I think it's safe to say that if Valve loses the appeal, or decides to change it regardless ahead of time, they likely won't take the unnecessary risk of not rolling it out across the EU.

If they have to build infrastructure to support reselling game use licenses to comply with this law, it's unlikely they'll be able to justify releasing it to France only; there'll be backlash from their users in other countries.

Companies release features to some regions all the time. For example, in Google Photos, you can search by face in the USA but not Europe (due to differing privacy expectations).

Huh. TIL regarding Google Photos.

That sucks; glad I'm in the US because I use that feature often. It's great for when friends ask for the photos I took of them.

In any case, I predict the Steam situation will differ because privacy and retail goods are valued differently. Americans are going to want that feature if Steam has to implement it, and they have options regarding what game store they use; it becomes a point of competitive advantage for Steam to switch it on in the States. They'll have to do the calculus on whether they lose more potential developers if they do vs. lose more potential store users if they don't.

Funny enough, if you use a USA based VPN server, the option will appear on your account and you'll be able to activate it. It Will stay activr for your account even if you switch back from VPN

That's deliberate... Those kind of "annoy the customer" limitations are all for PR/legal/business reasons, and the engineers building the features want to make the restrictions as easy to get around as possible.

Steams refund policy came about not long after being convicted in Australian court for not allowing them.

"convicted"? It seems as though this would be a civil issue, not criminal. I'm not sure to which case you're referring in Australia, but it appears this case was civil.


TL;DR they got a big fine and also had to put a message on the storefront informing customers of their rights under Australian consumer law.

Pretty strange in this day and age with companies like Uber, Google or Facebook.


Nintendo would be another such company .. Impossible to get a refund from them if you buy something in their digital store.

Could this extend to ebooks as well?

Valve's argument that what they sold was a license and not the game feels like a distinction without a difference to me. Say I accept that. Then why can't I sell that license?

At the moment, no, because a ruling in the Court of Justice of the European Union this September concluded that the resale of e-books is illegal.

Interesting to see how these two rulings will affect the notion of reselling digital items.

https://www.trouw.nl/binnenland/doorverkoop-tweedehands-e-bo... (in Dutch)

It sounds to me like this is going to be a mess of competing lower court opinions until a high court somewhere comes down on one side or the other.

What's the difference between the two cases?

A license is a contract between you and valve. You can't transfer that license because the contract says you can't. The court says that the digital game is a good (just like a DVD is), and not a license, so you must be allowed to resell it to somebody else.

Transferring the doctrine of first sale to the digital realm would have massive implications for pretty much every digital distribution service we have today. Streaming services wouldn't be affected, but Kindle, Steam, iTunes, and so many others are built on the assumption that their product has no secondary market.

That's probably true, but it shouldn't factor into the decision about whether or not digital goods should be transferrable.

So the end result must be that licenses can't take away your resale rights.

So is an ebook not a good?

Under French law, probably. Not A French Lawyer.

I think this should. Using the same logic, this should apply to in-game items and other "dematerialized" goods.

Sensible but not surprising decision. The right to resell software was made incredibly clear in the CJEU case Oracle v UsedSoft.

In fact, how did Steam manage for so long to ignore the pivotal case law?

Steam? How about pretty much every digital storefront? You can't sell prime movies, you can't sell iTunes music and so on. All of these store fronts should ideally allow people to resell all digital content they purchased.

Prime movies is all you can watch rental service. Buying movies from Amazon digital is buying a perpetual license. The distinction is in selling access versus selling goods.

>The distinction is in selling access versus selling goods.

That's the core issue.

We shouldn't let firms dictate ownership. Buying stuff is historically a right to property. The whole discussion is pointless because digital firms are using the regulatory capture, its slow reaction and legal loopholes to dictate ownership, all while doing PPP with the gov and lobbying for its causes.

This whole thing is a temporary theater show (while we discuss the issue, the firms are making money and donating it). People should DEMAND regulatory instruments to react quicker and respect our rights.

Why should? The whole idea of copyright is that only the author (or otherwise copyright holder) can profit from making copies. Just because you purchased a copy yourself shouldn't automatically result in a right to making another copy for someone else as long as you promise not to use yours.

That's not how copyright works on physical goods, like books, DVDs, etc... The Doctrine of First Sale is a crucial part of Copyright law. The author doesn't get to control your life because you bought one of their works. If you want to use it in some other way then they intended they don't get a say.

But you are not making another copy with physical goods. You are giving/selling it to someone else. Those things aren't analogical (for the same reason making a copy isn't "stealing" it's at most copyright violation). There is a reason for this distinction. Making physical goods costs money, making digital copies is free (basically). If we accept the premise that copyright holder can exercise control over it there is no reason why you magically should be able to make exactly one copy for someone else once you stop using yours.

The author also doesn't control your life, quite the contrary the court wants to control the life of the author by forcing them to implement ways to move the game to another person/computer/account.

I think selling a computer where the game is installed to someone else is more akin to selling a book or a car or whatever and I doubt anyone would oppose that.

The physical printing costs of a book are a negligible amount of its cover price. Saying that because it's cheaper to make a copy of a digital good it needs new rules doesn't seem like a strong argument.

The author's problem are entirely self inflicted in this case, as it is his own DRM that is making him do extra work to allow transfers.

I know, people here are demanding that after you fill up at an all you can eat buffet, you should be allowed to sell your seat to somebody else.

No they are saying that if you buy a meal, you should be able to package it up and sell it to someone else, which you can do. If I go buy a hamburger, I can walk right out onto the street and if someone else offers me money for it I can sell it. What I can't sell is access, which is what a buffet is, you're not paying for the individual item you're paying for access to the buffet.

So what is the difference exactly if Steam says they sell access to the game for your personal account? Would it that be a good analogy then?

It's a very good analogy. I feel the downvotes come from people who are opposed to copyright in principle. That fine and all but once you accept the premise of copyright then forcing the author to allow reselling defeats the purpose. In case of ebooks for example one could easily resell it like 100 times to all the friends first day so anyone could take a look.

This is especially bad for the authors in case of content based product. If you are selling copies of knowledge you acquired then forcing you to allow reselling means you will have to sell for much higher price or not at all. There are opinions and verdicts of EU courts which makes different rules for content based electronic goods. For example you are not forced to grant refunds with those. I really hope Steam wins the appeal or that courts in other countries won't repeat this verdict (it's not case law in most of Europe so what French court decided hasn't much weight in Germany or Poland or whatever other country.

If this ruling is accepted, it's going to go a bit further than "can't ban," right?

AFAIK right now, there's no infrastructure for transferring one's games on Steam from one user to another (apart from, say, selling the password to one's Steam account). So would compliance of the ruling imply Steam has to build some kind of digital marketplace infrastructure to allow for licenses to be resold?

I dont see why they would need to create the marketplace themselves. Why couldn't they just let users convert purchased titles back into keys and then sell them on tons of third party key sellers that already exist?

They could.

... but they could also offer the option of doing that, but alternatively just letting you transact the game to another Steam user directly, using the in-store currency (with an x% shaved off the top) for the cost of Steam basically working as an escrow service (to guarantee you haven't done something like converted to a key and then sold that key twice).

If doing so is fully compliant with the law, I predict that's what they would do (and it's probably worth the cost to them to pay the lawyers to argue that's fully compliant... ;) ).

I wonder what the highest x% is that the courts would accept as not totally bs. I'm pretty sure if Steam said, oh yeah, you can re-sell within Steam but we'll just take 99% lol, that would not be ok.

There are games in my Steam account I don't play any more, and I'd be happy to sell them, or even just gift them to friends.

Hoping the capability to do so does get added. :)

Users could sell their accounts without that requirement.

But Steam already has an extensive digital goods resale platform for all sorts of things from trading cards to in game items it actually includes gifted games (not sure if you can sell these but certainly you can transfer them).

This is incredibly stupid. This is just going to make games even more unprofitable to make for their developers, and push it towards live-service/F2P games over traditional ones, since account selling is prohibited. Its hard enough to survive in that sphere making traditional games now; enabling the Gamestop effect on digital games is probably going to hurt beyond compare.

I think it will cut down on those massive Steam sales, which basically work by encouraging people to buy a bunch of games they don't actually want and won't play.

I think that might cut down on the diversity of titles, but also could drive up quality.

Its going to increase dark patterns and loot boxes for kids who cant / wont pay £50 for a AAA game

It might fix the problem of loot boxes. If the law applies to games, then it may apply to in-game items as well. Then players would be able to buy in-game items on secondary markets at known prices rather having to gamble for them as they do now.

A game only has value while I'm playing it. If two people play the same game at different hours or timezones, they can buy a single license and transfer it back and forth. (This is different from e.g. server software.)

A tariff on resales would cut back on that (if the ruling allows it). But the effective price of a game would still tend to approach the cost of reselling it. You would need to re-download the game every time you buy it, but with modern broadband this is feasible.

An efficient marketplace for 'renting' games (or game licenses) would let you buy a game just before you start playing, and resell it when you go to sleep. The marketplace would only need to buy enough licenses to satisfy peak demand and could amortize the cost across players and games.

The article doesn't mentions that the judgment would force Steam to facilitate game resell though.

You can be allowed to do it, but it can still be a pain in the ass to do it (giving access to your account, etc...).

Same goes for a marketplace that would use that rule to allow people to rent the games. None of theses games has to facilitate the resale and they aren't forced to sell license to the marketplace either (though they could buy license through Steam or anything else, but that would still go with the "pain in the ass" argument).

This is true. But if it's at all possible, the marketplace could automate it. History shows that DRM and adjacent technology rarely succeeds if the law doesn't make it illegal to circumvent. And history also clearly shows that most users are willing to click a button letting others access their Steam account if needed.

Personally, I like the fact that Steam games can’t be resold. Why? Because that keeps the prices down since the resale value of a game does not need to be included in the price.

If games could be resold then I’d have to go through the trouble of reselling them in order to recoup the difference.

The fact that triple A games have similar prices today on steam to the times when they also had both disk printing, physical distribution to stores and resale figured in seems to contradict that assertion. The main thing that’s keeping prices down seems to be the storm of smaller indie games and sales (which for Triple A games happen much much later in the lifecycle these days).

Inflation and the use of things like performance capture has increased costs

>If games could be resold then I’d have to go through the trouble of reselling them in order to recoup the difference.

works both ways, you'd also have the opportunity to buy a resold game, which in the case of digital goods would not appear to make a difference.

I suspect the reason digital stores don't want to allow a secondary market is because market forces would actually cause prices to drop. I'd sell 75% of my Steam library for whatever the current bid price is right this moment. Even if I just get 20 cents total, that's 20 more cents of value than I'll ever get from those games again.

How about the ability to sell one's account, then? This is currently forbidden in the EULA, as far as I know, but I don't think it would hurt prices that much.

Or purchase a "license upgrade" to resell the game. That would be a deferred commission not everyone has to pay. Include the option to purchase it together with the game, and attach it to the license being transferred (I don't think they could get away with selling that upgrade multiple times in a row).

I do not see this as a black-or-white situation. I am all for giving consumers more rights, and feel like we have been brainwashed into accepting the status quo by Big Tech™.

I do not blame valve. They are one of the better players in the market, and it doesn't surprise me that they just used an existing commercial model everyone was already familiar with. I appreciate the fact that we are having this overdue conversation right now, and that at least some courts recognize the consumer some rights.

> How about the ability to sell one's account, then? This is currently forbidden in the EULA, as far as I know, but I don't think it would hurt prices that much.

That point was made again and again to justify the previous "no refunds" policy. It wouldn't surprise me if changing that policy actually kind of had the opposite effect (have people buy more games). Of course, people can also buy more expensive games now due to the same reason: not sure if the game is worth that price? Buy it and refund if it isn't (previously you wouldn't have bought it).

I am quite interested in seeing the same ruling apply to ebooks/others as well. The only thing I am afraid of is if they turn everything into a subscription. Subscriptions are evil (except for recurring donations, in my book).

I don't get the logic. How not reselling keeps the price down? Isn't it the other way around?

There are games that are 2 or 4 years old and still have the same price as the release day. If reselling was an option it will force them to lower the price and even offer more for those buying "new".

Almost everyone I know only buys games during the big seasonal Steam sales, perhaps with the exception of the occasional “must have.” By not allowing resales, game developers are forced to offer big discounts during these sales in order to capture the “clearance bin” prices that would otherwise go to the secondary market. If reselling were possible, game publishers would never offer those discounts since resellers would always undercut them.

I have personally purchased some Steam bundles that included games I’m actually interested in playing for less than a dollar.

It's easy create a "tax" that goes to the devs for every resell. Actually that would be better than the old physical games reselling.

If forced Steam will surely put a "tax" for themselves, so why not add the devs.

Digital games are expensive because of ohisical media version price parity. And guess what? Those games already have the "can resell tax", so you digital games are already more expensive due to the ability to resell, even though you can't actually resell them.

Actually you’re just subsidizing the people who can resell their physical disk copies.

If game companies could just raise prices today and make more money, why wouldn’t they, regardless of what happens in this case?

If anything, allowing resale would cause demand for new product to go down causing lower prices.

You can't resell your copy of Windows, I don't see how games are much different.

I think at least one likely result would be many fewer deep discount sales. Having them would allow a resell arbitrage as people stocked up at the low price in order to resell when the sale ends.

Is there anything to stop you from reselling your retail Windows key? It's against Microsoft's TOS, but has an EU court ever verified that the restriction is actually enforceable?

As far as I'm aware, the answer is "no".

Why not? It's perfectly legal in the EU to sell any digital goods second hand as long as you stop using the software you sold.

I didn't realize that! Though in researching it, I found that the law allowing resell is somewhat linked to the original install media, i.e., you couldn't sell the license key and a backup copy. I don't see any EU cases that square this with digital distribution, but maybe this current ruling will provide guidance on that issue.

There was the famous Oracle vs UsedSoft lawsuit: https://www.theverge.com/2012/7/3/3134867/eu-court-of-justic...

This basically added jurisprudence that digital downloads can be resold provided that the original is made unusable.

Most software EULA say they are non-transferable, but that court order overrules it. That restriction has become meaningless. Interesting!

That case was one of the reasons that Adobe and Microsoft switched to a subscription-based model for their software suites.

That makes sense. I also saw some speculation that it's helped accelerate some vendors' efforts to convert customers to cloud offerings. On the other hand, I saw a very insightful analysis that thought vendors fighting this were being short sighted because annual maintenance can often be upwards of 20% of the initial license, and so recipients of second hand software would still be more than making up for the revenue in the not-so-long term.

I think this is a bad idea which will encourage more in game transactions to be profitable. Margins aren’t good enough for the majority of games. I hope this doesn’t expand out of France.

> bad idea

It's not a policy decision, it's an interpretation of current law. There is a very big difference between a legislative body deciding to add a new law as a policy matter, and a court interpreting pre-existing law.

This will likely expand to at least the whole European Union since european texts were used to arrive to this ruling.

"texts"? there is an EU ruling that you cant sell e books.

Each EU country implements EU law in its own way I suspect this would be challenged at the EU level.

Some European countries are known for not really implementing EU law as they are supposed to - Spain and TUPE for example

With laws like this you generally have to ask what's best for the consumer. I'm not sure reselling is.

The current setup gives game developers a somewhat predictable revenue model and on the strength of that model they can encourage investors to put up money to make the games. Changing the revenue model may change how investors look at the market. Maybe for better maybe for worse. Who knows, but it would be a disruption if Steam has to adopt this model worldwide.

The thing that I don't like is if you allow reselling then developers get less long-term revenue but (hopefully) more short-term revenue. This will cause them to focus more on getting a big opening weekend than making a solid game that might have years of appeal.

Portal is still $10 on Steam. Maybe they only sell 100 copies a month at this point but that's still money coming in rewarding them for investing in interesting core game mechanics. I'd rather see them get rewarded for that than for dishonest advertising campaigns because 50% of their money will come from the first few days of sales.

Funny how you can make the same comment about physical goods. Should we ban selling second hand furniture?

With laws like this you generally have to ask what's best for the consumer. I'm not sure reselling is.

The current setup gives furniture salesmen a somewhat predictable revenue model and on the strength of the model they can encourage investors to put ip money to make furniture. Changing the revenue model may change how investors look at the marker. Maybe for better maybe for worse. Who knows, but it would be a disruption if IKEA has to adopt this model worldwide.

The thing that I don't like is if you allow reselling then carpenters get less long-term revenue. This will cause them to focus more on getting a big opening month than making solid furniture that might have years of appeal.

Antilop is still $20 at IKEA. Maybe they only sell 100 chairs a month at this point but that's still money coming in rewarding them for investing in ergonomic chair design. I'd rather see them get rewarded for that than for dishonest advertising campaigns because 50% of their money will come from the first few weeks of sales.

> Funny how you can make the same comment about physical goods.

No, you can't. That's why this is such a complicated issue.

The inherent value in a physical good is consumed with use. If somebody buys a couch and takes it home it becomes a used couch. Used couches are not great substitutes for new couches; they devalue with time and use and you eventually have to pay somebody just to take it off your hands. Its value actually goes negative.

A used digital good is a perfect substitute for the original. A digital copy is also a perfect substitute for the original. That changes everything. If we want people to be able to make games professionally, and to be compensated for their work, we have to use laws to make the digital marketplace resemble the physical goods marketplace. Or find a whole new model which I don't believe anybody has done.

The inherent value for a digital food also decreases over time. Top of the line graphics from ten years ago look bad in comparison to today. Story driven games get their stories spoilt over time, especially the popular ones. Compatibility with controllers and other such devices depend wildly on backwards compatibility (for example, the xbox one controller had loads of compatibility issues with games that only accepted xbox 360 controllers for a while).

I would have paid 60 euros for Skyrim back in 2011. These days, I wouldn't spend more than 10-15 bucks on it if it was new. This is reflected in the price on steam as well, with it currently being sold for 15 euros.

The mere passing of time decreases the value of the goods, just like using a game would.

I don't know what happened that people think that selling things you don't need anymore second hand is suddenly bad just because the goods are on a computer. The car industry would love a method to stop people from buying second hand cars but consumers would never accept such limitations.

Games sales aren't affected by anything past the opening quarter. A study done by the EU on piracy concluded that even piracy is barely affecting the price of games after the opening period. Reselling games will barely touch the games industry.

Adding arbitrary rules just because the game industry is unhealthy isn't a solution to the problem. If I have to give up rights so that people can make some shiny toys every now and then, I don't care about those toys anymore. I don't want to give up rights to keep game developers employed because their current ecosystem is unviable. And, in my opinion, neither should you.

You're still not getting it.

It's irrelevant that graphics from 10 years ago aren't as good as they are today because that only matters for games where cutting-edge graphics are part of the selling point of the game (i.e., AAA games). There are plenty of games that don't try for cutting edge graphics and so look the same today as they did when first released, like Cave Story, Celeste, Fez, Braid, etc.

The point the parent was making is that a copy of a game is inherently the exact same as any other copy of the game, which is not the case with physical goods. A physical good, however lightly used, still has some wear and tear when resold, so it is not the same as a new good.

So, in this case, suppose I lose my phone, then buy a new one, but before opening the box I find my old phone again.

I have spent money on the phone but there is literally no degradation. Is selling the unnecessary phone hurting the industry? How much money is Samsung losing?

The whole "perfect copy" sounds like an invented reason to stop preventing people from exercising their rights to me. I don't see why the quality of a product needs to be degraded before you're allowed to sell it. The market is as big as the amount of people playing your game at the same time, that's how it's always been up until Steam came along. Games were made before Steam and they will be made when they are sold second hand again.

The only difference between hardware and software in this regard is that software actually can be prevented from being resold. I see no reason why we should.

It's not that they're not getting it, it's that your point is a poor one. A physical copy also came with the costs of storage, storefronts, retail space, manufacture, shipping, etc. None of that is true now. A digital copy costs almost nothing to store and retrieving that copy is again a nearly costless process. The only person who loses by locking up digital goods is the consumer. You're making the same arguments film studios made about VHS, except VHS caused movie studios to make more money than ever because it forced then to make better stories and movies. What do we get now that there's the digital push? Rehashed super hero stories and 90s nostalgia.

> The only person who loses by locking up digital goods is the consumer.

In the short term they my be losing out (kind of. It's like how I lose out when I don't steal at the grocery store.) but in the long term they're gaining because the companies making the goods they're purchasing get to stay in business.

It's a trade-off. Do you want video game consumers to have a short-term boost because everything's free, or do you want them to have a healthy game development ecosystem where talented devs can get loans to make good games because they'll have a predictable revenue stream from sales. You can try to balance the two, but you can't give them both.

Really all of this I want it free, I want it now just leads to free-to-play games where the developer recoups costs through micro-transactions, loot-boxes, pay-to-play items, etc. And in this model you probably never own the game at all. If the user can't be trusted to own the game, then never give them a complete game! Always keep part of it on your own servers. Force them to log in, force them to be connected, force them to have an active credit card number on file.

If we demand to resell/copy/trade the digital goods we purchase without restriction then this is the world we get - we stream movies, we stream music, we connect to game servers, but we never possess any of it. We never listen to a song without Spotify taking notice and putting it in our file. We never watch a movie in privacy without Netflix, "oh, he's watched Fight Club three times this week." We never get to play a game without server-side analytics being run to look at how tweaking the boss difficulty affects sales of the super-sword.

It's not as simple as saying locking up digital goods hurts the consumer.

For the case of physical media that contains digital data (like a game on a DVD or music on a CD) this is a distinction without a difference. Should I not be allowed to resell my CDs if they are in pristine condition?

I think the argument being made here is: bad for companies -> companies are less incentivized to make products -> bad for consumers of those products, therefore anything bad for companies is bad for users.

I still by all my console games on physical disc, so I can sell/trade them.

Steam raised PC Gaming back up but it also created a world where we don't buy games any more, but licenses to games. I still try to buy off Humble Bundle or GoG if the same game is available in their store DRM free, even if it cost more.

I can see as it being better for artists, but it's also this weird situation where the license to the game is attached to the person. Physical media can be sold later, restored or copied if it's in danger of not being readable ..and old content is still preserved. Classic games from this era won't really be preserved the same way if any of these licenses servers from Steam/Origin/BattleNet ever go under one day.

> The thing that I don't like is if you allow reselling then developers get less long-term revenue but (hopefully) more short-term revenue. This will cause them to focus more on getting a big opening weekend than making a solid game that might have years of appeal.

But this exactly what happens now anyways.

Not a cynical view point just a statement of what I believe to be facts. I had some interest in making indie games myself, so I looked at the market.

Almost all games sales follow a power curve with most sales falling in the first week. The publishers build a tidal wave of marketing hype months before the game is released. AAAs spend tons of money to build-up to a critical mass of media influencers [e.g. YouTubers, entertainment conventions, TV ad spots, etc...].

Warframe, Path of Exile, GTA V, Minecraft, ect all have long tails. I think we need new categories for different kinds of game sales & financial performance. There certainly are still flash in the pan style sales like you describe, but there's more sustained forest fires too.

It probably bites one-and-done adventure-style games more than games with the replay value of, say, a multiplayer competitive system or a Roguelike randomizer. That's a category already bit by the people who just watch the game played on YouTube instead of buying and playing their own copy; decreasing their opportunity for first-sale revenue increases the opportunity cost of making such a game.

There will always be developers who will make a game as a passion project, but I'd predict that this ruling'd make the market for the potential next Sierra or Telltale even deader than it already is.

I'm pressing F for the golden years of Sierra :(

> decreasing their opportunity for first-sale revenue increases the opportunity cost of making such a game.

I don't understand the use of 'opportunity cost' here but I think it's a good point. It's generally not good to discourage viable business models. My fear is that if we're baking in resale value to the purchase price, now consumers may overvalue both the game AND the resale so they get hit twice in a blockbuster/flop type situation.

Short of offering resale/final-sale options, which I do like, the laws will encourage some sort of business model. I'm thinking encouraging long-term quality through final-sale only purchasing is looking a little better for consumers than what the French court is apparently doing.

Another option is reselling could be done through Steam who takes 30% which they split with the devs. So the consumer gets to resell, Steam gets paid, devs get paid, maybe any lost revenues are offset by consumer wellbeing?

Steam would get ts cut on reselling, and it might give devs/pubs a share. Right now, customers are less and less for traditional single player games.

Would that be compliant? I'm not convinced it would be. What would stop Steam from making their cut 99% to basically make reselling pointless?

The logical interpretation, I would think, is that Steam should have to allow customers to turn their games back into keys.

If steam loses this case, what is to stop someone to ask the same of app stores and reselling apps you have purchased, or eg movies on iTunes.

Nothing, I would imagine.

...which seems to me like a good thing.

Sweet, time to create a bunch of steam accounts, stock up on cheap games during steam sales, and then resell after the steam sale, undercutting the the "new" version (it's not like a digital resale is any lower quality than the "brand new" one). Rinse and repeat. Profit.

You can do that with every product on sale. Buy clothes on sale and sell them later at full price or close to it.

Yeah, and as a result, prices are going to be higher for everyone. No more 90% off steam sales like we currently get - that would just encourage profiteers to stock up on as many digital copies as possible in order to resell and undercut later.

And certainly no more "Celeste is free" type promos - that would be a feeding frenzy for profiteers.

People can already buy on discount and resell later if they use Humble Bundle or stores that gives Steam keys. We have been able to do that for years.

People already do that, steam key resellers exist. I think you'll find it pretty hard to compete with professional scalpers as a one man operation. You're also banking on being able to sell the game for a smaller discount than the one on offer, later. It really doesn't strike me as a business that would be profitable.

I'd imagine Valve is going to have some sort of market fee to prevent shenanigans like this; they'll probably just slap this feature on their regular community market which already has a 5% transaction fee.

Edit: Or better yet just force sell price equal to at-time purchase price when it is bought off the steam store. The law just says they have to allow users to resell games, it doesn't say anything about allowing users to make a business off of it.

Or just let people do act as resellers of your product.

Presumably Valve is doing this hyper-low prices because they have the ability to and it makes the customers happy. They might decide to thumb their noses at everyone and say "okay fine, you guys are the secondary market now, figure it out yourselves, but we have no reason to give games away for free or sell them for 95% off"

You know you probably have to pay taxes on that?

> and isn’t required to pay recurring payments in order to maintain access

Simple solution: make French users pay recurring fees. Problem solved?

EDIT: would be nice if I could prune my library and perhaps swap some games. But what about other marketplaces and other stores? Why only Steam?

If Valve prefers not selling games in the EU to implementing a way to sell second hand games, sure.

Remember that the French court is referencing EU law. This basically means that the practice is forbidden across the entire EU based on current jurisdiction.

It's possible for Valve to introduce pay-as-you-go games, but doing so would probably violate the contract under which previously sold games were sold. This means that they still need some way to allow customers to either resell or download and resell the old games regardless of whether they will charge a fee to their users or not.

They might also undo the sale of the old game, assuming the customer agrees to do that, and give back the entire paid amount spent on the platform in exchange for removing the old games. This would be a huge financial loss to the company and would only be possible if all customers agree to getting their money back.

If they do charge a fee, they should expect their consumer base in Europe to shrink significantly.

If Steam wants to appeal, they might be able to put the case in front of an EU judge. This will cost them even more legal fees and is likely to end in the same result. Reselling digital goods is allowed in the EU and Valve (as well as other companies like it) are breaking the law.

In my opinion, just following the law would be a better choice commercially than trying to work around it.

I think this could get interesting.

Would valve be legally required to offer their services (game download + cloud saves) to a second hand buyer? Surely the person selling the game would need to provide the second hand buyer the copy of the game along with the key?

Valve merely provides a service which says "this key now belongs to this account" but that second hand buyer has no right to download from valve?

I'd say yes. The steam key comes with a set of perks that made the buyer pick steam as a reseller over one of their competitors. Removing those features would degrade the value of the product and, in my opinion, be a measure to prevent proper resale of the product.

When I buy a key, I don't somehow get the download to my computer before adding it to my Steam account. Steam designed their system in such a way that the installer has to come from them, and that you can't burn an installer that only works with your key.

Imagine buying a chair with massage functionality and a GPS tracker that stops working when you move it outside your house. In my opinion, even though the chair itself remains functional, the added DRM would prevent someone from selling the chair second hand, because the main reason you buy the chair has suddenly been disabled by a third party.

DRM is a crazy thing. Now it distorts the already DRM-distorted reality.

Steam's DRM isn't technical, it's the community and platform itself. Any technical restrictions are completely optional.

This always gets brought up when Steam and DRM are mentioned in the same sentence, and it is true technically speaking. However, I'm not convinced it matters in practice.

In reality, the vast majority of games on Steam will not start if Steam isn't running. And some which appear to work at first will have strange errors later on. There's also no way for me as a consumer to tell if a given game has DRM before I buy it. That pcgaming wiki has been wrong for me before (many times), and sometimes games that used to work will no longer do so after an update.

My point is it's not forced on to developers like some platforms do, hint Epic Games Store. Edit: Not true.

I know a plethora of people who support only Steam on principle alone. Not only have they been kind to the Linux community but they've so far held up their end of the bargain when it comes to Steam. Valve's willingness to uphold free speech (while accepting all the downsides like negative brand attention) also means a lot to me.

They used to be awful for customer service but it's really come around lately.

I'm not sure where you read that, but I can confirm from first-hand experience that it isn't true. My Epic Game Store copies of Journey and Control are both completely DRM-Free.

I actually don't have the Epic Game Store installed on my main Windows partition at all, its isolated in its own VM. As long as the games I buy are DRM Free, I can download them in the VM, back them up, and move them to my real OS, and they run fine.

If you want to support a platform based on a DRM-free point of view, you should only buy from GOG. The only ethical platform.

Though I don't consider DRM-free the only metric for being ethical (being one of the few platforms to really support Linux, contributing back to OSS including the Linux Kernel itself, pushing free and open standards for VR, etc.. are all reasons I support Valve), I really appreciate and support GOG too.

What do you mean by technical?

Technical restrictions like online activation. While Steam does support these features, they're not the reason the platform is so sticky. It's because the community, features and sales are attractive to consumers. Most people don't feel like their games are held hostage by Steam. If they went DRM-free I do believe they'd stay just as popular.

The whole reason why Steam has gotten so popular is that it found the right balance between having DRM (big budget studios mandate it) and having that DRM to be unobstructive. Now, this going to have to change, but most people are used to online requirements so they won't notice...

I can't imagine Valve won't find some loophole or way around this. Being able to resell digital games would destroy that economy. A possible outcome would be games in France are never on sale and they can only be traded within the French Steam economy. Can Valve still take a cut of all sales on their platform or add fees? Very curious how this turns out, but I feel like it's 50/50 whether this makes things better or worse.

From the article: "Valve’s defence hinged on the argument that Steam sells game licenses – subscriptions – to games, not the games themselves. The court, however, doesn’t see game purchases on Steam as subscriptions, since the owner has access to them indefinitely, and isn’t required to pay recurring payments in order to maintain access."

Guess what the loophole's gonna be?

Steam will cost you 1 euro a month to maintain access, BUT WAIT, we've got this awesome "temporary introductory" deal where for every Euro you spend on anything in our store, anything at all, you get one free month of subscription! Yes, buy one brand new AAA game and you get 5 or 6 years of free subscription! Wowzers! What a stonking great deal for the consumer! Such an incredible deal that has been so successful that we're running it indefinitely, despite the fact it's totally temporary.

But if you do somehow manage to run out of months, you will indeed lose access. That part has to be real. And there will be a real "just buy subscription access" option, though nobody will ever use it because why just give Valve 12 Euro when you can buy a game with it instead?

I'm fairly confident in common law traditions, that would be too blatant and they couldn't literally do that. They'd sidle up in that direction, though, as close as they thought they could get. I don't know about how France's Civil Law tradition would take that, but, still, same principle; head in that direction as close as you think you can get. "As close as you can get" may in fact be quite far, but I think this is still the general direction you're going to see.

> Valve’s defence hinged on the argument that Steam sells game licenses – subscriptions – to games, not the games themselves.

IANAL but buying a license seems different to me than buying a subscription, and if you ask most Steam users they will tell you that they do the former not the latter. (In fact I have never seen the word subscription on their store, though I guess it is somewhere in their EULA).

If they go that way they may have to change their wording and that will also change the perception that people have of the platform: if I'm subscribing to a service the price I'm willing to pay to access (not buy) the games will probably much lower.

It may be better for them to just keep people thinking that the own the games forever (even though we know in practice this is probably not be true).

I'm wondering if instead they could just set themselves as the middleman for the used game market, since they already have all the infrastructure needed. In this way at least both steam and the publisher could get a cut.

I agree, the court's argument doesn't make much sense. It can only result in various work arounds, for example making everything subscription based which most customers don't really want. Another work around could be selling per computer license -you will have to pay for using it on every new computer. It's not something anyone wants.

Destroy the economy is a gross exaggeration.

Game sales over time generally resemble a power distribution. Most sales happen within the first week or so, then sales follow a steep drop-off. There are of course exceptions in the indie game community, but AAA publishes build up to a tidal wave of marketing for release day, then things kind of simmer down.

So a second hand market would cut into the tail-profits. Certainly not desirable for studios, still but quite a few jaunts away destroying the economy.

It's a toss up whether I want money going to the dev or publisher rather than someone selling their game. With the way that prices drop drastically, sometimes not even a few months after, I'm fine with the current model. The only thing I'd really want changed is a more permanent way of keeping games like GOG.

They could put a fee on it, just like they do for cards and in-game items, then share with the publishers/developers.

Sell a game for $10, you take $9, valve take $0.50 and gives $0.50 to the publishers.

I see this working well for games that are no longer available to buy on the "new games" store. For example, the Deadpool game, It's no longer for sale, but I have a copy the I son't play anymore. I could sell it for a few bucks for someone who wants it.

I could easily see this as setting the minimum sale price as the current new-purchase price, Valve taking a 2%-5% cut, and then putting the balance of the proceeds in the seller's Steam wallet just before throwing out an offer to use it to buy the top game on their wishlist that costs less than that amount (maybe after a 5% post-transfer incentive discount).

I really wonder how this will work with VAC bans and cheating. You can be banned from a game by various means VAC is one of them and Battleye is another popular tool. If a person gets banned from DayZ then they sell their game to buy a new copy that isn't banned does the buyer of their original game remain banned?

VAC bans are account based and can impact multiple games at once. A new user installing the software couldn't be tied to that account. The original user is still banned. That said you might be prevented from reselling as a form of punishment. I'm guessing that it wouldn't be difficult to set up a new account, however it couldn't be associated with the same MAC addresses.

Thing is, looks like that Valve would be prevented to forbid reselling of an account on these grounds...

Another problem is that the court probably means that you can resell games for real currency. Currently you can buy games with the Steam currency, which means that reselling games is a legit method of piping out real currency from Steam.

... which would then make many of the in-game gambling systems illegal because it can be cashed out, which would ban a lot of the lootbox gambling games.

I don't really see a problem here to be honest.

They wouldn't necessarily need to implement that though, just a way of transferring licences to someone else. People could figure out their own payment.

There's the problem of needing escrow for selling the game in that scenario; if, say, they implement game resale as "You can ask Steam to cut your access and give you a unique code someone else can enter to gain access," there's the problem that if I buy that code from you, I have no knowledge of if it'll actually work when I get home (maybe you sold it twice?).

... and then Steam can offer payment via their in-store currency (with x% shaved off the top) to basically serve as an escrow intermediary. Win-win for everyone except the developers deprived of first-sales by the new resale market.

Not Valve's problem. Valve is not obligated to provide a framework that makes reselling games safe and easy, they just need to allow the transfer.

Not problem; opportunity.

The same case also says that Steam must reimburse steam wallets when closing an account too.

How is that?

If you sell items from certain games (like CSGO) or redeem a gift card, you get credit applied to your steam account. This can be used to purchase games, then you could (hypothetically) sell them for real-world cash.

Well yeah. But if they are forced to allow reselling of games, I bet they won't allow that. Only games you bought with real money could be resold. They can set more rules too.

So, don’t sell in France in order to keep your business model in tact?

More like "don't sell in the EU". Not sure if that's a market to easily ignore...?

Does this ruling affect all of the EU?

Not a lawyer, but since it seems to be based on some EU harmonized market regulation, I suppose it could.

This is absurd. When I buy a game on Steam, I fully understand that it doesn't have any resale value – and I easily agree to this deal, because I choose to forgo resale rights so I can get the game cheaper. But now this court have effectively destroyed my freedom to make this choice as a customer. And to add insult to injury, it's done this under the pretense of defending my rights, as if I'm an idiot who's not capable of making an informed choice.

I really hope Valve finds a way to fight this. I don't want to go back to pre-Steam PC game prices.

>But now this court have effectively destroyed my freedom to make this choice as a customer

To frame the idea that you don't have ownership of something you purchase as a freedom is some truly Orwellian spin on the term. You still have all the freedoms you had before, if you don't want to sell your games don't sell them.

Giving customers proper ownership rights over the goods they purchase is not freedom diminishing, what has the world come to where you frame giving up control or ownership as freedom?

GP currently has the ability to buy a product in a way they like (not purchasing resale rights that they don't want.)

Somebody wants to take that away from them.

GP is upset they're losing the freedom to do business in the way they like.

You're calling their view Orwellian because French Big Brother knows what ownership rights they really want to purchase?

It's not Orwellian, it's just a complicated issue of how intellectual property law affects consumers.

> GP currently has the ability to buy a product in a way they like (not purchasing resale rights that they don't want.)

Why is GP's freedom more important than my freedom to buy the product in the way I like (purchasing resale rights, or even having them included by default)? On top of that, the fact that GP has the "freedom" now doesn't mean that having the freedom is an inherent good. Remember that slave owners previously had the freedom to own slaves, and now they don't. Taking away a freedom somebody once had is arguably the foundation of civil society and the state if you subscribe to the idea that humans without the state exist in a state of anarchy.

>You're calling their view Orwellian because French Big Brother knows what ownership rights they really want to purchase?

No, the Orwellian view is that there is freedom in companies being able to decide what you can do with something after you've bought it from them. The person you're replying to, in my reading, views the whole notion of such a freedom as being profoundly anti-freedom. This is the sense in which it's Orwellian - freedom is confused, at large, with its opposite. As such, the way you're using the term "freedom to do business the way they like" is itself an expression of that unfreedom, just as in 1984 the usage of the word "freedom" by the Party actually refers to its opposite. From Marcuse:

>Thus, the fact that the prevailing mode of freedom is servitude, and that the prevailing mode of equality is superimposed inequality is barred from expression by the closed definition of these concepts in terms of the powers which shape the respective universe of discourse. The result is the familiar Orwellian language ("peace is war" and "war is peace," etc.), which is by no means that of terroristic totalitarianism only. Nor is it any less Orwellian if the contradiction is not made explicit in the sentence but is enclosed in the noun.

Really it's the seller's freedom that matters first. It's their product, it's their labor, they can offer to sell it to anybody who's happy with the terms. The buyer has the freedom to buy or not buy the product. In this view intellectual property law is only enforcing the terms of the voluntary contract.

On Orwell. I was commenting that I could accuse the accuser of Orwellianism of Orwellianism. But I could do it with the advantage that their version includes using the machinery of the state to call a restriction of a freedom a freedom.

I don't think it's productive to argue over who's really Mr(s). 1984. Instead we can accept that we're talking about trade-offs in freedoms, that it will be complicated, and go from there.

> It's their product, it's their labor, they can offer to sell it to anybody who's happy with the terms.

No they can't, and there's precedent for that: food regulations, warranty regulations, refund regulations, regulations on sale to minors, tax regulations etc. - this is in recognition of the fact that without the resources provided by the state and civil society, they wouldn't be able to sell it (or, in some cases, even produce it) in the first place.

> But I could do it with the advantage that their version includes using the machinery of the state to call a restriction of a freedom a freedom.

This is rather ironic, not only because restriction of freedom is what gives us what we regard as higher freedom (almost by definition, e.g. the case of the savage society being less free than ours since there are no laws against murder and theft, thus people cannot pursue their "higher" ends freely) but also because Orwell was himself a socialist![0]

Restrictions on freedom are not merely trade-offs, they are essential to the functioning of society. The point I'm making is that this restriction on the freedom of the seller in this case is based on a conception of freedom in which its opposite (unfreedom) is held within the noun itself. When you speak of the freedom of the seller, you're also speaking of the unfreedom of everyone else.

[0] "Every line of serious work I have written since 1936 has been written, directly or indirectly, against totalitarianism and for democratic socialism, as I understand it." (George Orwell, 1946, "Why I Write")

We're getting pretty far off-track which is what I was trying to avoid but ok, I'll try to bring it back around.

I believe a human being has a fundamental right to their own labor, and even if this isn't the case I think we do best acting as if it is. Socialists of all stripes disagree with me; if the state is to claim control of everybody's labor of course you can't hold this right as sacrosanct.

I agree that a market system requires laws and regulations to function. That doesn't mean we should be blindly regulating in the name of consumer rights without thought for the consequences and whether or not it even works. This is why we have the field of economics.

In this case the intended goal of helping the consumer by increasing their "freedom" probably won't be met. Either because 1. game developers can't get funding to develop future games without a stable revenue model so they stop making games, or 2. they realize they can get funding so long as they never actually give the consumer the full game. This leads to the server model where some core functionality of the game only runs on the server and you buy a subscription. Either way, you start with the intention of giving consumers more ownership of games and they end up with less ownership than they started with.

We could spend the next few days waxing intellectual about what freedom really means and all that or we can realize that the plan just doesn't work in meeting its own goals.

It reduces freedom to make the following deal: "you get it cheaper but you can't resell it". It seems it also forces Steam to do work (implement code to move licenses to another account, support the new customer as after every resale it's likely there will be more support work etc.). It definitely reduces freedom of contract and imo in the wrong way. I prefer to buy software cheaper and don't worry about reselling it later. If resell value is included in price I will just be subsidizing people who do resell their games.

For some titles there is no option to get a "resale allowed version". E.g. I bought a retail version of Borderlands 2 several years ago on DVD (long time post release, was like 20 Euro in a local games store). Well, turned out that DVD basically was a Steam Installer plus key (of course, that's a decision made by the publisher).

Also, "so I can get the game cheaper" - do you? When I buy a newly released game on Steam it's usually in the 50 to 60 Euro range. Most games I buy are a lot cheaper, but they're usually a few years old by the time I pull the trigger.

Still, I also have mixed feelings. If games get a resale value, it will be more difficult to earn money making games. Especially those with great, but short content.

If it really is difficult to make money as a developer I would rather see Valve reduce their absurd 30% cut than use it as an excuse to not allow a secondary market.

> Also, "so I can get the game cheaper" - do you? When I buy a newly released game on Steam it's usually in the 50 to 60 Euro range.

It's about 30 in my region.

On the upside, having resale value is a direct attack on loot boxes, micro transactions, and other forms of in-game financial exploitation. You might be less likely to sink a thousand dollars into loot boxes if you're thinking about selling the game.

Good point. I was skeptical of DLCs when they first game about, but if they're decent quality/effort expansions, then that's fine with me. But games with the kind of exploitation you mention I stay away from, and as someone who regards games as a kind of art, I can't see how our cultural heritage benefits from this... kind of games (I'd like to add some not-so-nice words aimed at the beneficiaries of these "games", but those words seem inappropriate for HN).

//edited a little bit ;)

Also it can encourage making more expansions or DLC, a good example is Witcher3 , if you deliver a quality expansion each year for a few years then people would not sell the game. I am so disappointed on games that the writers wrote a cool story but you need to wait years between releases(Dragon Age) or forever(Half Life) because the management and developers keep rebuilding the engine or try to modernize a good enough game with a big fan base.

The first game I could find on Amazon and steam is F1 2019. Its £34.99 on Amazon and £44.99 on steam. The legends edition is £54.99 on both platforms.

The more I think about this, the more it sounds generally correct to me. It should be proper that a "no resale rights version" is offered at a cheaper price compared to a higher priced "this is an asset you can resell" just like an N64 cartridge or etc.

There are benefits to both models and the user and company should have the freedom to offer both.

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