Whose game is this?

October 19, 2009 6:54 AM

Who owns the games on Steam?(or any digital download service)

Are there any online, resources, blogs, sites that are keeping track of what seems to me a big looming question regarding IP?


When I purchase a game from Steam, am I buying or renting?
What will it take for this to get litigated? What are the possible ramifications of any decision?


If I purchase a game, I am free to resell the game after I play it, be it for console or PC. I can resell most anything I purchase.
Steam says that it is against their EULA to sell your free account that you have purchased games for.
I tried going through the Steam forums, but all I get is emotional opinions on one side or the other.


Personally, I am interested because I use Steam exclusively for all game purchases for a variety of reasons, and am wondering what happens 1,10,100 years from now when I want to give or sell Plants vs Zombies to somebody.

posted by MrMulan to computers & internet (7 comments total)

It's been a few years since I closely followed the law in this area, but wikipedia seems to have a decent summary of what is called a "clickwrap" license.

In brief, it seems that the licenses have been generally upheld as enforceable contracts rather than treated as illegal encumberances on the sale of property. True sales can be subject to the first sale doctrine, which would allow a purchaser to sell or give away a piece of property.
posted by exogenous at 7:08 AM on October 19

To expand on what exogenous said: You're not buying something per say, but paying for a license to use someone else's intellectual property in a specific way, eg, playing it. Legally speaking, you haven't bought something in the sense of purchasing a physical object, so you don't get to resell anything.
posted by Tomorrowful at 7:34 AM on October 19

So has that question has been settled in the courts? (you bought a license not a game)

Wikipedia states that it is on a case by case basis as some EULA (parts of a EULA) might be unenforcable.
posted by MrMulan at 8:01 AM on October 19

So has that question has been settled in the courts?

Not definitively, though as usual a lot depends on your jurisdiction, and the facts of the particular case.

I'd guess that nature of the Steam transaction, where you don't actually get a physical copy, would make a court more likely to hold that it's merely a license instead of a purchase. Also in their favor, if I recall correctly, can't they make you check in with them online to make the game function? That also sounds more like a license than a true purchase of property. Of course this is just speculation and not legal advice or opinion.
posted by exogenous at 8:11 AM on October 19

I'd guess that nature of the Steam transaction, where you don't actually get a physical copy, would make a court more likely to hold that it's merely a license instead of a purchase.

To muddle things even more, it's not always that clear. I can in fact purchase Steam games in the store and install them from disk, and then they get activated over Steam. However, I can also download the same game in the future from Steam if I reinstall my computer or whatever.
posted by jmd82 at 8:19 AM on October 19

It's a license. And if you ever trigger their anti-cheating software, which they claim is completely infallible, but if you Google around, there are a bunch of cases where people are fighting that claim, then you lose your ability to play on about 98% of hosted servers, and if you change accounts, you have to buy your games all over again (the licenses won't transfer). It will tell you that you violated license terms.

That didn't happen to me, but it did happen to someone I know who was most definitely NOT cheating in any form, but Valve won't even tell you what the suspected violation is, when it allegedly occurred (the ban isn't immediate), etc.

They just send you a form email saying you violated license terms, the system is infallible (despite actually having an acknowledged history of at least several false positives), etc, no matter what you try.

So I'm wary of Steam, even though I do have an account.
posted by cmgonzalez at 9:31 AM on October 19

It's a tricky one, legally - there have been cases both for and against the legality of EULAs*, and as always it depends upon jurisdiction, and the specifics of contract and copyright law in your area, especially UCITA states which are very pro-EULA.

In purely practical terms, the situation is clear - you're effectively licencing the games on steam, not buying them. You have no way to resell, transfer, or even to have multiple people in your household playing multiple games on your account at once, a definite problem if you have a large software library under one account. This is the downside to paying for games on steam, or indeed pretty much any commercial software these days, they work very hard to limit what you're allowed to do with it afterwards.

The thing to bear in mind is copyright a list of exclusive rights reserved to the copyright holder; there are specific exemptions and limitations to these rights; and while the copyright holder may not use copyright law to stop you exercising these exemptions, there's very little stopping them using technical means (with those means protected by laws like the DMCA) to stop you exercising your right of resale.

Take the doctrine of first sale. This basically means that once a copyright work is sold, they lose the opportunity to impose additional restrictions, or expect payment, from any further sales other than what normal copyright law allows. So you buy a book, you then get to resell that book without asking permission. But if they sell a game DVD which has a one-use online activation code on it to create an account, and then install limits tied to that code, you have no actual right to demand to be actually be able to sell it on. You have a legal right you can't exercise.

That said, even if a EULA is judged to be a contract, it still has to be a valid contract. If it's judged to be unconscionable, i.e. an "absence of meaningful choice on the part of one party due to one-sided contract provisions, together with terms which are so oppressive that no reasonable person would make them and no fair and honest person would accept them." then it's likely that particular term would be unenforceable. There's also a big questionmark over how far people have to go to accept the terms; merely sticking the terms on a leaflet in the box may not be enough, but agreeing to them via 'clickbox' may well be, especially if there's an ongoing service or other consideration in exchange.

So in steam games case in particular, that you get additional features, i.e. autopatching, online friends lists, ability to redownload on any number of computers etc would probably make the EULA agreed to prior to purchase or installation valid - and the restrictions such as only one user and no resale would probably also be valid.

Interestingly though, there's been a recent case where an ebay seller was able to successfully defend his right to resell 2nd hand copies of autodesk software on ebay, even though the EULA explicitly forbade him or the person he bought it from from doing so. Autodesk claimed that they never sold software, only licenced it, so his copies were illegal, and he was therefore in breach of the DMCA by selling them on. Autodesk lost, the judge basically ruled that if that it walked like and quacked like a sale, it was a sale, and first sale doctrine applied - and given the ebay seller never agreed to the EULA by installing the software, Autodesk could not prevent the 2nd hand sales.

So if you bought that steam game at retail in a box from a retailer, with no contract signed at time of purchase for a fixed fee they it'll be a sale, and first sale doctrine will apply, 'it's only a licence not a sale' be damned. Being able to enforce it after agreeing to the EULA, and forcing valve to cough up the means to actually transfer it technically will be a whole other kettle of fish though.

If these restrictions really irk you - and they probably should, given how they slowly strangle previously common rights - then frankly the only real solution is not to buy the game on steam in the first place.


* ProCD v. Zeidenberg found a EULA enforcable in one circumstance; Klocek v. Gateway found that it wasn't in another.
posted by ArkhanJG at 2:08 PM on October 19 [1 favorite]