The Steam contract of the publisher Valve was attacked by the UFC Que Choisir. In its decision of 17 September, the Paris Court of First Instance annulled several clauses. In the lot, the one that prohibits the resale of game licenses. A revolution in the field of dematerialized gaming platforms. Next INpact distributes the decision exclusively.

We can resell a cartridge, a tangible support, why not an access to Steam? This is essentially the issue raised by the UFC-Que Choisir almost four years ago.

On December 28, 2015, the association assigned Valve, with about ten clauses in the general conditions of use of its Steam platform to the index. All are considered abusive by the association.

We will come back to most of the clauses pinned down, but the central point is the one prohibiting the resale of access and use rights to Steam video games. This clause is fundamental to the publisher's business model. By prohibiting him from transferring his account, it allows him to ensure the loyalty of the player, to whom he imposes his prices, without a competitive secondary market.

The ban on reselling Steam games Legally, the "exhaustion of rights" rule allows a publisher to control the distribution of a work on a market. Once this is done, the freedom for buyers comes first, allowing them to resell this content without prior authorization.

Does this traditional rule for audio CDs, DVD games, software sold on a medium, etc. also apply to dematerialized content? Before the Paris High Court, the issue divided the two parties. For Valve, it would only apply to tangible games, not to online licenses. According to the UFC, the initial buyer must be able to resell these games second-hand, even those acquired on the platform.

The association claims the application of European law, the 2001 Copyright Directive and the 2009 Software Directive, in addition to the case law of the European Court of Justice, which has recognised this possibility in the field of software (UsedSoft case). It recalls that this principle contributes to the free movement of goods in Europe.

An unfair term for the TGI The TGI will fully follow this thesis: the two aforementioned directives mention the exhaustion rule, without distinction between tangible or intangible works. Admittedly, in the Intellectual Property Code, its transposition refers to a "material copy", but this provision must be interpreted in the light of these higher rules: the Member States do not have "the possibility of providing for an exhaustion rule other than that of Community exhaustion" explains the judgment.

Problem, Valve prohibits the resale of the account by having taken care to store in this drawer an "inextricable" bag of information: personal data, data on the player's activity, data relating to digital purchases, including virtual objects, in addition to a host of services. But for the TGI, it doesn't matter: the platform does indeed sell a game and, with regard to European texts, it is imperative to authorise their second-hand sale:

"The holder of the right concerned may no longer object to the resale of this copy (or copy) even if the initial purchase is made by downloading. The software publisher (or its assigns) may no longer object to the resale of such copy or copy, notwithstanding the existence of contractual provisions prohibiting a subsequent transfer. »

Clause 1-C was thus "deemed unwritten", and therefore non-existent, unenforceable against players. The consequences of such a decision are equivalent to a legal earthquake since it could apply to any download platform that prohibits this type of operation!

It should be noted in passing that the courts considered that these licenses were purchased, not provided on a subscription basis:

"Finally, the "subscription" to the " registration " (of a game) made by the user, which is referred to in the conclusions of the company VALVE (...) consists in reality of a purchase, the game being made available to the user for an unlimited period. It cannot therefore be a "subscription" - in the usual sense of the term - but the sale of a copy of a video game, made at a price determined in advance and paid in a single instalment by the user. »

Other clauses prohibited by the Paris TGI Other clauses have suffered the same fate. Some of them are dated. Clause 10 of the GCU, as amended in 2015 and 2017, concerns, for example, the jurisdiction of the courts.

It has been censured by the TGI, failing to specify that a consumer can always bring an action before the court of the place where he is domiciled. The same part of the contract fails to indicate the applicable law, while suggesting that conciliation procedures are mandatory prerequisites before legal action can be taken.

The same applies to clauses 1 and 4, which too generously released Valve from its share of responsibility for the use of passwords and logins, in particular. Clause 3-D, still in its 2015 and 2017 versions, offered similar comfort to the publisher with regard to the exchange of digital objects on the community market.

Valve still allowed itself the freedom to interrupt one of these markets, while at the same time declining any responsibility. This was considered a little strong for coffee by the TGI, which considered the hypothesis of a "technical failure attributable to the publisher".

A responsibility, even for the "beta" versions Clause 2-B (years 2015-2017) concerns this time the licenses to use software provided in "beta". In the opinion of the UFC, Valve "requires the user to install the beta software only on a system on which the malfunction of the software would not cause any damage". The publisher of the Steam platform defended itself, ensuring that players are "aware of the risks they face when downloading unfinished software, which may not work properly or cause a bug or computer crash".

For the TGI, Article L221-15 of the Consumer Code establishes a strict liability towards the consumer for the performance of obligations resulting from a contract concluded at a distance. Only three cases can be identified: force majeure, the consumer's fault or the fault of a third party to the contract. However, here, Valve suggests that the user ultimately assumes all responsibilities, which is incompatible with our law.

Valve, electronic money and the refund obligation The Steam wallet also takes some heat. The TGI considers that Valve is simply an issuer of electronic money. An analysis shared by the UFC-Que Choisir, challenged by Valve. In vain.

As a result, this qualification will oblige it to reimburse customers who refuse the new general conditions of use, which the publisher contractually refused. Wrongly.

Clause 3 is therefore deemed to be "unwritten".

The behaviour of the players, the blur, a wolf It's not over yet. Within clause 4, relating to player behaviour, the publisher reserves the right to sanction a player for breach of the "common sense" rules or the "basic rules of behaviour". He can then terminate the contract, the player loses his virtual items.

These provisions were not considered sufficiently clear for the courts. They "do not allow the consumer to determine when his or her behaviour (online conduct) would be considered inappropriate".

Personal data also in the viewfinder The issue of personal data was also in the spotlight. The UFC successfully argued that the conditions relating to personal data, hung up on the T&Cs, lacked readability.

Thus, to inform the user about the legal basis for the distribution of targeted advertising messages, Valve adheres, for example, to the "applicable laws on email marketing". According to him, this implies a reference to Article L34-5 of the French Post and Telecommunications Code. In short, an implicit but far too inaccessible reference to the "average user" and even to the "average lawyer" scratches the TGI.

Another contradiction, this time with the heart of the RGPD and the amended CNIL law: installed in the United States, Valve Corporation obliges the French player to bring his claims relating to Privacy Shield first before the publisher and then, in the event of failure, with a "third party supplier" chosen by him.

Its clauses mention that the Federal Trade Commission is competent... but forget to remind that the user can also refer to the CNIL on these issues of transfers of personal data to the United States.

Another point: one of the parts of these conditions was also highlighted, because it reserved the right of access, correction and deletion or modification of personal data to users of the site only, "without providing for the exercise of these rights by passive users, whose personal data were nevertheless collected via cookies". The cookie management policy also bears the cost of this decision, a point to which we will come back in more detail.

30,000 euros in damages Equally discarded was the clause that granted Valve an assignment of copyright, in advance and for the future, on all future creations on its platform. An immediate transfer as soon as you join the Steam subscription agreement, which a player cannot refuse if he wants to use the platform... However, Article L131-1 of the Intellectual Property Code states that "the global assignment of future works is null and void".

Finally, the TGI ordered Valve to publish a link to the entire judgment on the cover page of the steampowered.com website, its tablet and mobile applications, for a period of three months. This online publication must be made within one month of service, subject to a penalty of €3,000 per day of delay, with a maximum of €540,000.

Finally, Valve is ordered to pay €20,000 in damages for the damage caused to the collective interest of consumers. In addition, 10,000 euros are added to cover the costs.

Neither Alexandre Rudoni, lawyer of Valve Corporation, nor Ronan Hardouin, lawyer of UFC-Que Choisir, wanted to answer our questions. The decision remains subject to appeal.