By John Walker on February 1st, 2012 at 1:18 pm.
What do you own? Looking through my possessions, I feel fairly comfortable that the food in my fridge belongs to me. And I have an odd confidence that the hardware in my PC is mine. But the books on my shelves? I seem to have very little rights over them. The CDs stacked up in a cupboard (remember CDs?) certainly aren’t my property. And the software on my computer may as well be tied to a long piece of elastic, just waiting for the publishers to give it a tug. You own a license. But a license for what? This lack of ownership becomes even more concerning when it comes to the digital space, at which point our rights to anything become extremely ambiguous. And that’s something that can bite you hard on the bum, when places like Steam seem to reserve the right to ban you from your account, and not even tell you why they did it. Below is the story of one RPS reader who says he lost access to his entire Steam collection, and thoughts from game lawyer Jas Purewal on whether we really own any game we buy.
We’ve heard some very stupid banning stories from EA, and as many as we’ve reported, we’ve heard dozens more. But the odd thing is, EA tends to tell the bannee what ridiculous reason they’ve assigned. That’s something RPS reader ‘gimperial’ alleges he discovered Valve wouldn’t, after he had his account banned. An account that had over 250 games, with well over £1000 spent.
Gimperial’s case wasn’t clear-cut. He’s in Russia, and openly admits that he’s gifted games to people in exchange for money, to help them get them cheaper. Not frequently, and it’s certainly not something Valve could have known he had done when they banned him. And he states that he mostly gifted games for free, just as a favour. He acknowledges that gifting in exchange for a financial payment is against Valve’s TOS, and doesn’t protest innocence. But the strange thing is, while Valve wouldn’t tell him what he did to receive the ban, he says they did tell him that it wasn’t because of gifting.
Instead he received a message informing him he’d violated Valve’s Steam Service Agreement (SSA). Questioning what aspect of this he’d violated, as he could find nothing he’d done that matched up, he received a response with just a copy and paste of the exact same SSA, and the news that,
“We will not be able to help you further with this issue.”
They then ignored tickets he sent, trying to get clarification. Attempts by him and his friends to contact Valve directly, including emailing Gabe Newell, also didn’t receive replies.
Oddly, gimperial had his account suspended over Christmas because Valve were concerned it had been hacked. Once he assured them it had not, and he was the one purchasing, they apologised and reopened his account, telling him – says gimperial – that they would put a note on his account to prevents its being suspended again. gimperial claims they told him,
“If you are going to make large amount of purchases again, please reply to this ticket so there are no issues with your account in the future.”
“I will make a note of it on your account.”
You can read the full exchange here.
Because Valve cannot have known that gimperial had gifted in exchange for cash (and he insists that most of the time it was genuinely as a gift, and often just in exchange for a beer), that cannot be the reason for the ban. And if it had been their suspicion that he was doing something like this, the normal practice is to issue a warning, not to just shut off the account. And it’s especially of note that gifting for money is not mentioned in the SSA.
On Sunday I emailed Valve to ask about this case, drawing their attention to the forum thread, and to ask what their policy is for issuing bans to accounts.
“Is it Valve’s policy to refuse to explain to customers why their accounts have been banned?
Does Valve think it reasonable to permanently withhold access to a customer’s purchases without offering the appropriate refund?”
As of Tuesday lunchtime, I have still not had a reply. However, late yesterday, gimperial received an email from the Valve tech support op who had told him they wouldn’t help him any further, saying they would be looking into his case once more. And this morning, gimperial has found that his account has been restored, with access to his 250+ games returned. However, he has had his trading privileges permanently suspended.
Well, suspended until 2022, it seems. So gimperial won’t be sending out gifts any more.
So this story has a sort of happy ending, and gimperial would be the first to say that this result is fair. Clearly there’s confusion, gimperial saying that Valve previously explained that his gifting was fine. The ambiguity is unhelpful, and certainly a cause for concern from any philanthropic sorts who might take it upon themselves to do something lovely like buy a game for everyone on their friends list. The idea that just the suspicion that extensive gifting is enough to have you account banned without explanation, isn’t one that sits comfortably. And hopefully Valve will soon get back to us with answers to the questions we’ve asked.
It’s also worth noting that had Valve not chosen to get back to gimperial, which only happened after we’d contacted them (although of course this could be a pure coincidence), he’d be stuck, and have nowhere to go but lawyers. When Steam’s meagre customer support refuses to respond, there’s no phone number to call (the one that exists redirects you back to email), no manager you can reach. You’re just shut out, seemingly unless you can cause enough fuss on the internet.
Once again drives home a crucial thing to understand. You do not own your games. Whether bought through Steam, Origin, or any other digital download service that requires a live account to play them, you are at best renting those games, with no guarantee that you’ll be able to continue to do so. And those bans can be issued without a stated or proven reason – it’s in the agreements you click “Agree” to when you sign up an account, or buy a new game.
But is that legal? I asked gamer lawyer Jas Purewal about this a short while back, not specifically about Valve, and he explained that the matter is still unresolved. “In fact,” he says, “it’s never been completely resolved for software generally – at best, we have some guidance to follow.” But he explains that the commonly taken position is that when we buy a boxed game, we own the DVD, but only have a license for the software on it. “A ‘licence’,” Purewal explains, “is essentially a limited personal right to use the software on certain terms and conditions – it doesn’t give you the right to e.g. sell/transfer/copy/reproduce the software.”
Of course, when we have a physical object, we do just about have the right to sell it second hand (something publishers are of course doing their best to scupper, taking away perhaps even the vestiges of ownership that we have of the plastic). But in the world of the digital, that right is obviously absent too. And indeed this comes with the ability to cut off your access to the game, even though you paid for it. Purewal says this adds even more focus onto the licenses that come with the games, usually the EULA. And where does that leave us?
“Is a EULA subject to consumer protection law? Yes. Has that been tested in a court yet? No, although as a very broad summary it requires a company who sells to consumers to act ‘reasonably’ towards its customers. Nor have governments/regulators definitively stated their position regarding consumer protection regarding digital content yet (though that is already beginning to change, certainly within the UK/Europe). So we don’t know the exact extent of consumer protection law regarding games – although developers/publishers generally do try to comply with the law insofar as they are able.”
But when it comes to answers, there are few. Pointing out that consumers tend to want to actually own something, Purewal also points out that publishers are pushing ever harder in the other direction.
“All this could have a big impact on the ‘ownership’ question. Would gamers care about ‘owning’ a game if they had very reliable, maybe cloud-based gaming controlled by rules that they understand? Would a publisher? If a publisher gives a gamer a right to return or exchange a digital game via a fair system that the publisher controls, would it really matter to gamers that they can’t sell the game through any other means?”
Of course, in the case of Steam, or any of its counterparts, this is a somewhat different situation. Steam isn’t a publisher, it’s a shop. This is the equivalent of being suspected of shoplifting from a GAME/GameStop, and having an employee come to your house and remove your entire gaming collection from your shelves. Individual publishers of the purchased games aren’t consulted for a Steam ban. This is Valve overriding all those individual licenses with their own, and removing access to your purchased goods. And, despite there being no legal position yet known, that doesn’t seem right at all.
It’s a little frustrating to realise that the answers to every question are, at this point, “We don’t know.” Can Valve legally ban you from accessing thousands of pounds worth of games you’ve purchased? We don’t know. Can EA really stop you from playing online games because you said a swear on their forum? We don’t know. And infuriatingly, the only way we’re ever going to find out is when it happens to someone rich/supported enough to take it to court. In the meantime, it seems that publishers are taking advantage of the ambiguity to write their own laws in the form of EULAs and other agreements, whether they could survive the test of a court or not. And that’s always worth bearing in mind when you consider what you actually own.
PS. We held this story back a day to give Valve a second chance to respond to our questions, but once again replies came there none.