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Comment by jsnell | Hacker News Reader

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...

[1] http://curia.europa.eu/juris/document/document.jsf?docid=146...

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> 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

Because "France" is not going after anyone, nor our watchdog, it's UFC Que Choisir (a pro consumer association, similar to eg EFF in their status/legal form) that sued Valve in court.

UFC is a regular of first trying mediation and getting companies to change nicely, and if nothing occurs then they do court cases like this, and then use the verdict as a basis for more mediation with other actors in the field.

https://en.wikipedia.org/wiki/UFC-Que_Choisir

Thanks for the correction, but it doesn't actually answer the question. Why did whoever initiated the lawsuit go after Valve, when there would have been stronger cases to be made against closed platforms?

(The cases against closed platforms would be stronger, since on those platforms it's far easier for the secondary seller to prove that they no longer have access to the game.)

I don't know the exact answer to that but if I had to take a guess, it's to avoid the "internal feature" defense. It's easier to make the case that your market for your own product (no other digital market can sell for it, your market doesn't sell for other products) should not abide to the traditionnal rules of normal sales.

Instead make the ruling clear in a case where this specificity doesn't apply, then go deeper in the rabbit hole if needed.

Again I'm only guessing here but it makes sense; similar to how, if you were to go against phone os app stores, you would go after Google first because Apple has the "my market for my product" and "not legaly a monopoly [depending on how you define the market]" card.

How is Valve not a closed platform for the games that it sells?

You can't really export the game outside of Steam, or use it with Steam disabled for any significant amount of time.

Presumably jsnell means PC gamers and game-makers can choose between Steam, Origin, GOG, Epic, Humble, and Microsoft Store.

While on the other hand, an gamer or game-maker on iPhone or Android or Nintendo or Playstation or XBox has no choice in digital distribution channels.

(And of course the latter have other flaws too - like their famously capricious acceptance processes)

One could even go on to argue that PC gaming allows you to launch your own game store that allows resale if you think it's so important. Personally I don't find that a very convincing argument, though.

Surely that's an argument that the PC platform is an open one, not the Steam platform. The Steam platform appears to be an attempt to create a walled garden in exactly the same way that the consoles are.

Gamers can only choose between those when the platforms don't lock themselves down using things such as epic's store exclusive deals. Should go after those deals as being anticompetitive, and then we will have an open market.

You can link games you buy outside of Steam to your steam account. This provides users all the upsides of a steam purchase without all of the steam limitations.

Further, many games purchased on Steam provide keys that work without using the steam account.

Linking games to Steam provides the library aspect and social features I believe, but I wouldn't argue it has all of the upsides of a Steam purchase. For example, I would buy Ubisoft releases way back when on Steam instead of Uplay because I could have it manage installing/uninstalling the games (even if I could've purchased it at a cheaper price via Uplay. Ghost Recon Wildlands comes to mind).

For library management, GOG 2 (Alpha) is the best solution I've personally seen (have the various storefronts installed, import the connector for GOG 2, all the games from that storefront are imported into GOG 2, can install/play/etc. on a whim).

I have had steam download and install games like They are Billions I purchased outside the service, as long as it had the keys. This might not apply in all cases, but I have yet to have an issue.

You can do also bought games for XboxOne and PS4 outside the store and activate them on it. I'm not sure about the Switch.

My interpretation was this:

- because games are software, it is hard to enforce that people “selling” them don’t keep a copy for themselves as well

- apparently, this may have allowed an exemption from the “must allow reselling” rule

- because iOS is a walled garden, it is easier to implement DRM to prevent this

- therefore, the courts would have been more likely to force the App Store to allow resale

Yes, that's exactly what I meant.

> You can't really export the game outside of Steam, or use it with Steam disabled for any significant amount of time.

That isn't true for all games. There is this [0] list, but I have no idea about its quality. Essentially there are games that don't use the steamworks DRM parts, so while you do not get a steam-independent installer, those games still work after uninstalling steam (and you could probably watch the installer to make your own for a completely steam free PC).

[0]: https://steam.fandom.com/wiki/List_of_DRM-free_games

Consoles also control the hw which means it is possible to make the drm stronger.

Steam is a closed platform, but:

It's easier to beat Valve's lawyers than Sony's. Sony has a long history of paying out the nose for lawyers who could convince a judge that a law saying "Kill no one" meant "Genocide is legal for Sony Corporation!" (See: https://en.wikipedia.org/wiki/Sony_Computer_Entertainment_Am...)

Apple and Microsoft are the two most valuable companies on the planet right now, and they, too, can get some great lawyers (though they haven't demonstrated the same courtroom magic that Sony has).

I can't remember who originally was responsible for this quote, but "Nintendo is a pile of cash disguised as a video game company" is something that has been proven anything but incorrect over the past decades. Wouldn't want to pick a fight in any court with them, either. (Relevant: https://en.wikipedia.org/wiki/History_of_Nintendo)

Valve, though? Valve is worth little in comparison, and hasn't had a great history in court. Easy pickings. Then, after you win against Valve, you go up, using the precedent set to help you with the next target.

>It's easier to beat Valve's lawyers than Sony's. Sony has a long history of paying out the nose for lawyers who could convince a judge that a law saying "Kill no one" meant "Genocide is legal for Sony Corporation!" (See: https://en.wikipedia.org/wiki/Sony_Computer_Entertainment_Am...)

Is this supposed to be hyperbole? The case itself was never tried, so it that doesn't show anything about how effective sony's lawyers are.

That was just one example of a case (I just picked it because it's close enough to Hacker News that most people here probably remember it), and notice that Sony got everything they asked for before the case was settled, including some incredibly unfair things (like the list of people who had legally downloaded the legally-created software of Hotz). The reason it was settled out of court was seemingly just so Hotz could avoid a felony.

There are plenty of other Sony cases that demonstrate the rule.

People go on telling everybody about "legal" cracks because their lives are not affected.

If it meant hackers stole everything you own and worked for in your life so far you would think twice how legal this is.

A jailbreak isn't a crack, and the idea that it's a crack is ludicrous. iOS has had hundreds of jailbreaks. There's no financial incentive: it's just freeing a system.

Further, the idea that software piracy is stealing is also absurd, for an entirely different reason: copying is not stealing. Sony still had the original copies.

Beyond that: I already do release all of my source code under libre licenses. Copying isn't stealing, and I've lived my life as a testament to that.

iOS Jailbreaks are immensely valuable because they let you access the user’s data, hence why they’re literally sold for millions these days.

Stealing is taking someone else's property without due permission. That applies to intellectual property, it doesn't have to be physical.

Now you can use the stupid libertarian argument that you're just "moving bits around" or "moving numbers around" (and math is not illegal). But do that do much and you'll find that society's answer is to move particles of lead in your general direction, at high velocity.

I'm not a libertarian at all, actually. Intellectual property is a reasonable idea, but it only makes sense when forced upon producers instead of consumers, and a lot of what people deem as intellectual property is in reality something that should have patents on it. Patents expire, copyright doesn't meaningfully.

Stealing is taking someone else's property without permission, as you said. However, copying doesn't take it away from them, and jailbreaking literally doesn't do anything but apply a patch to your existing bits. That's the farthest thing from stealing you could imagine, and your argument falls apart with just the tiniest bit of poking.

>Sony got everything they asked for before the case was settled

Not much happened before the settlement, the parties settled very quickly after Hotz's motion to dismiss for lack of jurisdiction failed. The TRO sucked, but wasn't particularly unreasonable.

>incredibly unfair things (like the list of people who had legally downloaded the legally-created software of Hotz).

Jurisdictional discovery is not incredibly unfair, and was only a natural consequence of Hotz's motion to dismiss for lack of personal jurisdiction.

>The reason it was settled out of court was seemingly just so Hotz could avoid a felony.

The fuck? This was a civil case.

The fuck? This was a civil case.

Computer fraud is a felony, and around that time the DoJ was getting very trigger-happy in turning civil cases criminal. Google the CFAA, which they were trying to pin Hotz under.

> DoJ was getting very trigger-happy in turning civil cases criminal

Do you happen to have a single example of this?

https://en.wikipedia.org/wiki/United_States_v._Swartz

I don't think there was ever a civil suit filed against Swartz. As far as I remember and according to the timeline on wikipedia this seems to have been a criminal case from the very beginning.

And in any case I don't think this is a great example of the DOJ being trigger-happy, what Swartz did was obviously criminal and they were still willing to let him off with only a slap on the wrist.

Because (at least in the American court system) the precedent is far more important than the target. Valve has less less of a defense than some of the bigger players that actually do offer more of a subscription (or value-add for hardware purchase) and probably have a smaller legal team to boot, while still not being nobodies.

Does the EU have precedent like the US common law system does?

It depends on which member stay you are talking about - most are civil law jurisdictions and so do not have precedent cases binding as law - especially in France as we are discussing here.

Because french people dont go for "easy targets". This is why we have universal healthcare (and actually in all of europe), and also aviation worldwide.

Sarcam aside ufc que choisir have foughr a lot of high profile guys before.

This is the same company who's argument for defrauding 20,000+ Australians through refused refunds was they didn't check what the law was, they just blanket-refused refunds and shut down people's Steam accounts if they got chargebacks, until the government consumer protection watchdog sued them. They even claimed to not be doing business in Australia, despite accumulating 20,000+ refund requests which implies 6 - 7 digit quantities of undisputed transactions.

This is the origin of their refund policy today, which is no questions asked within usage limits. Australia is only like 5% of Steam users so they unfortunately got away with the vast majority of their fraud, perhaps several hundred thousand other instances.

https://www.engadget.com/2016/12/23/valve-steam-fined-2-mill...

Australian here. I sought a refund for a broken game. Steam refused. I cited the ACL. Steam closed my ticket. I reported it to that ACCC. Along with many other reports, ACCC sued.

One year and nine months later, Steam implemented the refund policy. I asked again for a refund. Steam declined it because the purchase was made too long ago.

I'm glad you did. I wanted a refund of Jagged Alliance 2 back in the early 2000s and they refused, despite crippling bugs with unlimited money in the base game and saving crashed in the expansion but only on the Steam versions you could buy it bug-free on other marketplaces. They sold it like that for years, I wish I'd thought of going to the ACCC but oh well.

I did go to the ACCC a couple years ago when I wanted a refund on GOG - they're more dishonest than Steam as they market a money back guarantee but the only circumstance they will refund is if you prove to their satisfaction that the game cannot open on your computer. It's a "no refund" policy just like Steam used to have.

https://support.gog.com/hc/en-us/articles/115000487189-GOG-C...

Stop requesting refunds and just take your money back.

How? With a chargeback request that will get your account shut down?

I don't see what this has to do with this thread.

These "This is the same company that..." type of comments are very low value. Companies operate across dozens of jurisdictions and have to comply with hundreds of laws. I goes without saying that eventually they'll bump up against a law and/or group of people that disagree with their decisions. That's a normal part of doing business and doesn't have any relevance to some other controversy.

Within the EU we just had another ruling that ebooks cannot be resold and a second hand market is illegal infringement on copyright.

I don't get why games and books are treated differently here.

Personally I understand the economic and technical problems a resale would present, but nevertheless I think putting restrictions of the abilities to resell is an idiotic policy approach.

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.

cross country limitations for digital services are shameful the hardest thing you have to deal with when you move to another country.

Even knowing some Googlers working in that area, it took me 6 months in order to migrate my google account to another country.

I don't remember the details that clearly but some features were not working well with a 'foreign' google account.

It has been 2 years and I am still trying to close my original paypal account and get back the money that is on it.

Dealing with Paypal support in particular has proven kafkaesque. The original account wants a recent proof of residence in my origin country, which is of course not possible. After multiple calls with support, the solution they provided was for me to create a new account in my country and ask them to transfer my old account to that one. I did so but the customer service for that other country claims that they can't access my original account and that I need to call their colleagues in my origin country.

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)

Do they not sell the tickets to people outside EU?

Can't you use the website and take a screenshot or "Print to PDF" to display on screen during the check-in/boarding process?

Not sure it matters in practice but in general a printable boarding pass is not equivalent to one issued for digital use. Specifically, printable boarding passes are PDF-417 symbology where mobile boarding passes mostly Aztec and QR symbologies, and occasionally Datamatrix. I could imagine an airline like Ryanair making a point of only accepting mobile boarding passes on phones, to extract additional revenue. This is covered in the IATA BCBP standard. [1]

[1] https://tinkrmind.files.wordpress.com/2017/09/bcbp-implement...

I always just save the boarding pass PDF to Dropbox on my phone because I don't want to bother downloading the shitty app for every single airline (plus who knows just what personal data they are scraping from my phone). Never had a problem for ~hundreds of flights with ~dozens of European airlines over the last three years. This includes Ryanair and the other hyper-budget airlines that seem to use flights as a loss leader for their lucrative "extra-charges" business.

It's also possible to import the boarding pass into Google Pay. The "correct" way to do it is through the airline's app, but I couldn't for the life of me get the EasyJet app to do it, and I really don't want to keep a number of budget airline shitty apps installed anyway, so I googled a bit and found https://play.google.com/store/apps/details?id=color.dev.com...., which allowed me to scan the barcode from the PDF boarding pass and import that into Google Pay. Tested it with EasyJet only so far, will try RyanAir later. It's possible to tweak the boarding pass a bit, even change the barcode to QR code, but I haven't tried that and it doesn't seem to be necessary.

I think the whole "you must print the PDF boarding pass" thing is just about saving time. Imagine an older person in a hurry trying to zoom the PDF just right and also max the brightness. My wife (30-ish) struggles to do this without slowing down the queue.

Because, to be clear, what is being sold is a license, which is, in effect, simply permission to install and play the game. It is very much likened to a "subscription" because customers don't actually "own" any part of the game at all. They simply own "permission" to install and play the game. And there are all kinds of restrictions to the license which includes transferring the license, reselling it, etc. which are all covered in the license agreement at the time of purchase or prior to install, which of course, nobody reads. :)

To be clear, what Valve wants and claims to sell is a license as you describe, and maybe that is the story they sell to the game publishers using their platform, and maybe it is all true in the US. What is actually being sold though depends on the jurisdiction, and Valve's bold claims have no teeth. It is common for US companies to learn the hard way that they cannot revoke legal rights in places like Australia and Europe. There is little point reading the license agreement when most of it is balderdash, falsely claiming a more limited agreement than that granted by law.

> And there are all kinds of restrictions to the license which includes transferring the license, reselling it, etc. which are all covered in the license agreement at the time of purchase or prior to install, which of course, nobody reads.

Most of those restrictions don't hold up under nations with significant Consumer Protection laws, like the EU and Australia.

Also, in those same jurisdictions, if a part of a contract is trying to enforce something illegal, like taking away a right, then the entire contract can often be considered void.

So if a Consumer Right is the transfer or reselling of the license, like it is here, then the contract is worth less than toilet paper.

> Also, in those same jurisdictions, if a part of a contract is trying to enforce something illegal, like taking away a right, then the entire contract can often be considered void.

Which would mean that nothing was transferred to the purchaser. What you seem to actually mean from the rest of your comment is that the illegal term can be excised leaving the rest of the contract in places rather than the contract being void (which may also be an option, but not one, in this situation, that would benefit the purchaser against whom the illegal term would apply were it not illegal.)

> What you seem to actually mean from the rest of your comment is that the illegal term can be excised leaving the rest of the contract in places rather than the contract being void

No. The contract is void. Which means the seller has no recourse, and no ability to rescind the product, etc, etc.

Which means that the transfer has happened without any obligations on the purchaser. The seller has transferred it to them, without a valid agreement in place.

If only the term itself was all that was made invalid, then the seller could hold the purchaser to account for other parts of the contract - but the contract itself is considered void.

In practice, this usually means that the purchaser has received the equivalent of an unlimited license grant. They can copy, disassemble, and so on, without limitation.

> The contract is void. Which means the seller has no recourse, and no ability to rescind the product, etc, etc.

That's not what a void contract would mean; a void contract would mean the seller and buyer have no obligations to each other, particularly, if the product required some interaction with the seller's servers to function (as much software does these days), the seller would have no obligation to continue such service to the buyer, as that obligation is rooted in the contract.

While use the language of a void contract, you seem to be suggesting that the contract would be valid in all respects against the seller but the buyer’s obligations would be voided. I'm not going to argue that there aren't legal systems that take that remedy for an unconscionable contract term, but it is not the same as voiding the contract. (It would be indistinguishable from voiding the contract in the exceptional case where the only obligations not already fully executed ran from the buyer to the seller.)

> In practice, this usually means that the purchaser has received the equivalent of an unlimited license grant. They can copy, disassemble, and so on, without limitation.

A substantial grant of rights that would not exist without the contract and which also weren't present in the contract is a radically different remedy than simply voiding the contract.

> the seller would have no obligation to continue such service to the buyer, as that obligation is rooted in the contract.

Ah. That's where you're getting stuck. No, that obligation is rooted in the Consumer Protection laws that supersede all contracts, not the contract itself.

> all kinds of restrictions to the license

are toilet paper in EU. Thanks to UsedSoft v Oracle I can go to the recycling center and pick up $5 copy of Windows 10 and Microsoft cant deny activation.

In my European country precent has no power. Does in Europe as a whole?

While in most European countries, precedent doesn't have much power, it can still be used as an indicator on how to interpret law or judge how a court case would go. There is also the higher courts in most countries, which don't set precedent but can set a modus operandi for courts to follow.

I think Valve’s defense is one that’s perfectly strong too, in theory, at least. Steam Cloud saves (syncing game state online), steam workshop (for community game mods, maps etc.), achievements/ leaderboards (arguably, steam makes a social network for games) are all features with running costs, aka a subscription, even if their price to the user is included in the sale price of the game.

From a developer’s perspective, Steam actually handles many more pain points of building games (voip, playing with friends, build processes, DRM, anti-cheat etc.) so arguably, the user is a subscriber of _steam_, since the developer is a subscriber of those services.

I’m curious to know why you find this defense “obviously bullshit”?

Steam is a digital store and a consumer buys software from it. You can twist words and describe it using all sorts of other marketing bullshit but it's mostly in bad faith.

It's why the NZ's consumer guarantee's act has terms like what is "reasonable" and The Disputes Tribunal (somewhat equivalent to small claims court) will often consider things from an average consumer perspective.

HN is full of technical power users so it's common for the comment sections of these stories to devolve into a "well actually" nitpick of language use but most sane countries consumer protection laws are intentionally not designed this way.

Otherwise you can probably extrapolate anything into a "subscription" service. Your bank and most credit cards are structured in a way that looks like a subscription, but an average consumer doesn't consider their plastic cards a financial "subscription".

> Otherwise you can probably extrapolate anything into a "subscription" service. Your bank and most credit cards are structured in a way that looks like a subscription, but an average consumer doesn't consider their plastic cards a financial "subscription".

I do, but I have to pay my bank X EUR a month to use it; therefore a paid subscription service. I don't have to pay Steam X EUR a month to use it. If I don't pay for Steam for a year, my account is still going to work exactly as it did before (sans a few DRM games, maybe, heh). Therefore, Steam is at the very least not a paid subscription service.

Whether it is a subscription service or not, well that is a different matter. I'd say a subscription service is only a subscription service if you regularly pay for the subscription (ie. monthly, quarterly, yearly). If the service stays running and working for you without you paying, then it isn't a subscription service. No, the reason Steam stays working is because of the <= 30% tax on all the sales. Which isn't a subscription service but more akin to a communal tax to keep the infrastructure working.

Apart from that, I never signed up for a Steam subscription. I did sign up for a World of Warcraft subscription. And that means there's no first sale doctrine, sadly, as this goes against the collector mindset the game stands on.

It not being a paid service is not a defense.

Steam is a DRM too, so if they don't want to keep the games in their servers offer a DRM free versions of all the games.

Thanks for bringing up disputes tribunal. Friend of mine recently lost a stupid case (buyer requested a picture to be stretched, even when seller explained it will look bad) and Trademe immediately closed his account with 100% positive feedback...

I’ve lost a case recently by super partial judge and dyslexic seller just blasting nationalistic insults.

NZ is nice but it’s not all daisies and roses.

> NZ is nice but it’s not all daisies and roses.

You'll get no argument from me. Didn't mean to imply our processes are perfect. I do my fair share of complaining about the NZ political and legal landscape elsewhere. :)

I think most people consider a subscription to be something that you pay for on a recurring basis. obviously you can "subscribe" to channels on YouTube without paying anything, but I'd say this is outside the typical usage of the word. if I bought a game in 2005 and it received some patches, I wouldn't have considered myself a "subscriber" to a "service".

no idea how this lines up with the legal definition, though.

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