Dead Game News: France vs. Valve + maybe the rest of the world

[Ross Scott]

Dead Game News!  I wasn't even sure about making more of these, but this news was so big and there was so much to talk about here, I felt like I had to.  I plan to make a followup video to the "Games as a service is fraud" video also, which this overlaps a bit with, but there was so much here  I thought it was enough for a video in itself.  It's worth mentioning this did NOT delay the next Freeman's Mind episode, the dialogue on that is done, I'm waiting for sound effects back on those, my guess is that will be out pretty soon.  More videos coming!

This is a blog post. To read the original post, please click here »

 

[RocketDude]

Hey, Ross, have you heard of RobotCache? It recently went into (closed?) Early Access, and one of the main features of the storefront/client is the ability to resell your games, IIRC. I think they're also going to solve the resale issue by giving a cut to developers. (It's probably also worth noting that you can buy games via their own cryptocurrency that you can mine yourself.)

 

[Veyrdite]

Publishers changing games from goods to services VS allowed 2nd hand goods markets

I am going to imagine that the large games publishers are going to want to feel the minimum disruption possible.  The less change, the better, especially if you are a manager in a big company.

In your video you give the argument that changing the appearance of games from being goods to services will impact image and sales.  You specifically mention the idea of games having to state that they will only last X years and be a subscription service.  I think this is being optimistic of how honest you expect the game companies to be.

I'm imagining they would instead do something like this:

• Positive spin on 'subscription' to make it look normal.
  
• Lever the existing microtransactions as a partial explanation for it being subscription.  Perhaps make a couple of transactions that "complete the game content" that are monthly, and say that if you don't pay you are not seeing the "full game".
  

This would be so much easier for them, they basically have to change nothing other than boxes, their license texts and what they say publicly.  No company structure change, no budget changes, no planning changes.  This is the least resistance path.

Debating your Impacts of demanding 2nd hand games be tradable (for the big game publishers)



I don't think "more money to the developer" is directly linked to "more games" and "lower prices".  The exact relationships are more complex.

I would like to think of "a sale" and "money going to the publisher" as two separate but very connected concepts.

"Money going to the publisher" does not directly lower prices.  Prices are set based on research and marketing of what price is going to maximise the overall volume of money in.  How much the game cost to make or how much it profits are irrelevant variables when deciding the sale price, you don't price based on demand or costs, you don't have to (this isn't a "limited" physical good).

"Money going to the publisher" may or may not make more games get released.  I'm a bit sceptical, I would assume that game release quantities and schedules are just as gamed as game prices.  For smaller developers: definitely yes, most of this money goes toward game creation.  But for the bigger boys: big chunks of it (possibly most of it?) goes towards marketing, corporate and planning.

"A sale", if we now consider everything other than the financial gain part of it, is more of a numerical concept.  This game sold X copies over Y time in Z pattern.  It's a bit like a hit counter -- a potential indicator of success, but not an indicator of future success (ie making more games & lowering their prices).

Take for example Valve: used to make games, got rich from it, decided to stop making games.  If you throw money at a publisher or game developer is does not get used for what you want it to get used for, instead they choose how to use it, and they will always run their sales at what they think is the optimal pricing strategy (not the lowest pricing strategy to reward consumers).

How would a 2nd hand market be implemented?

I think it's worth investigating all of the options here.

Fundamentally it's hard to do 2nd hand stuff for digital goods:

1. Allow anyone with a copy to install & play (GoG-style)
   
2. Force there to be only one owner/player at a time via DRM
   
3. Iron-hand the 2nd hand market by restricting it to your platform.
   

Option (1) is the most liked by consumers, but there's no way to confirm transmission of ownership.  I like this model, and I think there are arguments out there that this might lead to more sales (because people like this freedom), but I'm not sure.

Option (2) requires phone-home DRM to make certain that only one person can use the game at a time.  I have some games I picked up off the street at a council cleanup a few years back, including a copy of GTA4.  "Awesome", I thought, "these are mine now".  Nope, many of these games refuse to activate : (

Option (3) is where the courts give the companies enough lee-way to run a closed-house 2nd hand market.  This would be rife for exploitation unless there is a lot of governance.  There's not much point of the 2nd hand market if it's controlled by the same people as the 1st hand market, especially since there is no easy way of confirming that products are not being artificially "destroyed" to game the 2nd hand market prices.

This final implementation detail is what matters.  This may even end up being a whole second stage of proceedings.  If companies are allowed to run their own 2nd hand markets then they could game them just as they game the 1st hand market.  They don't even have to be transparent about it: "destroying" and "creating" a copy of a game is free to them.

Deabating the benefit on shady key sellers

I don't think a 2nd hand market is going to help shady sellers like G2A.  They will still operate in the same way and be just as shady:

• 2nd hand games cost more than free/dodgy/scammed keys
  
• Claiming a key is a valid 2nd hand game takes zero effort
  

Their services would still have the same prices and users would still (mostly) see them as just as dodgy as they are now.  Perhaps if someone goes to extra effort of creating a decent-looking 2nd hand game trade platform this might change, but they would have to be very wary of distancing themselves from traditional shady key sites.

 

[Veyrdite]

Hmm.  @Ross Scott, I probably shouldn't have used your site's artwork there without asking.  Please tell me if it offends.

 

[splashmob]

as someone who mostly buys indie games these days, this law scares me. a lot of indie devs already say its hard enough to get your game noticed, or to get it to sell at all currently, but this would only make that even harder than it already is.

why would anyone, if given the option, buy any digital game brand new for any price when they could just get a used copy for less? would indie devs even get any noticeable profit from used copies?

hypothetically i'd guess on Steam, they'd get a cut of the sale along with Valve, but they wouldn't be getting anywhere near as much as they would from someone just buying the game, since if you're selling a used game, you yourself would want to get some money from that sale.

there's a huge amount of indie games that have had significant impact on me in one way or another (Hyper Light Drifter, OneShot, Undertale, Wandersong, Fez, and so on) and with this law, i can't help but wonder how many potentially life-changing indie games the world could miss out on, because of the fear of not making a cent off of the sales of the thing you've put years of your life into.

how's this going to work for indie-based sites like itch.io? will they have to do something about this?

what about consoles?

there's so many things about this situation that are just really, genuinely concerning as an indie fan.

i hope this doesn't get enforced.

however - if this gets enforced, i feel like it could possibly have effects on digital sales as a whole, not just for games. what about music? would Apple end up having to make a resale market for digital albums? what about a site like Bandcamp? what about digital copies of movies, or tv shows? anything?

 

[RandomGuy]

Once again, France makes a terrible regulatory decision. They seem to have a talent for it.

Big publishers will be hurt but overall fine, since the used game scene is alive and well on console, they'll deal with it the same way they deal with GameStop. Meanwhile, assuming a PC resale market actually picks up steam (pun intended), mid-sized and indie developers are done-for unless they switch to only online multiplayer games. There is a reason there is literally no independent small publishers ala Stardock Paradox etc for consoles. Switching to multiplayer is very difficult as well since smaller games have less players and generally don't sell well due to their inability to attain a critical mass of players.

Basically, if this actually turns out to work and spreads, it will be the death of the modern indie PC scene. Big publishers can still use an advertising blitz to frontload sales (e.g. Call of Duty: WWII grossing over $1 billion in five weeks) but indie games that relied on word of mouth and a constant stream of sales over a few years will see revenue completely dry up after the first year due to resale. This is exactly what happens with console games, and it's why nearly every game that relies primarily on console sales makes the bulk of its revenue in the first few months.

Any single player games that are made are likely to be console focused in the future like Skyrim, GTA, etc.

 

[danm36]

I feel like, if Steam were going to abide by this law in some way, they would instead turn Steam itself into a subscription with a token monthly subscription, say, 50 cents/month or something (Perhaps only in countries that feature this law or a derivative of). At that point, they could then consider the games themselves as 'paid addons' or 'expansions' to the service, similar to MMO expansions. This seems to be similar to what Stadia is trying, except with larger subscription prices to cover the cloud streaming costs.

Wait, thinking about it this way, as well as the way Steam's community works, the various event based minigames they sometimes run etc, is Steam just the biggest free to play MMO of all time?

 

[Icebox]

Good to see more of these videos.

 

[Delicieuxz]

I don't see any inherent problems with being able to resell your digitally-purchased games. The concerns I see expressed about the threat to developers, especially indie and small-title developers, seem to me like they're FUD, and are dependent upon a view where it's assumed that being able to resell games means that the platforms, publishers, and developers are not making profit off of the 2nd-hand sales market. Well, that's an impossible scenario.

First, every transaction that involves selling a game that's currently registered on a platform necessarily has to use that platform's services in order to be transferred, and likely also for the listing and the payment processing. And that's just for the sale of the game. Then, if the sold game key is specifically for that same platform (as is the case with purchased new games), then whoever purchases that game has to use the platform's services in order to activate the game with that platform to be able to download and play it.

This means that platforms can charge listing, payment processing, transfer, and 2nd-hand license activation fees. And then platforms can split the revenue from those fees with games publishers along the same lines that new game sales are split with publishers. A 2nd-hand market can be done in a way that it's a guaranteed revenue stream for platforms and publishers, and can also be done in a way that pretty much maintains their current revenue streams.

Ross' video questions whether platform fees for 2nd-hand game transactions would run afoul of anti-trust laws in the wake of the Paris High Court's ruling. That concern misses an important detail.

But first, let me say that a company is entitled to charge fees for the development and usage of its services. A company cannot be forced to be a charity, and doing that would be paramount to state seizure of the company or an aspect of the company and turning it into a public resource, which only the corporation pays for. It would be like slavery of corporations.

Now, the important detail which that concern of platform fees running afoul of the Paris court's ruling misses is that not all of the prospective fees are related to selling a game. A 2nd-hand activation fee is entirely unrelated to the ability to sell a game. That technical difference is what law is about.

It is necessary for a person to activate their 2nd-hand license with a platform before they can possibly use it with that platform. And if 2nd-hand games are like new game purchases are, then a purchased 2nd-hand game could be activated only with the specific platform its key is for - which means that the platform a 2nd-hand game is purchased from will necessarily also be the same platform that it gets re-activated with. That means the platform which sold the game and likely made profit on the selling of that 2nd-hand game also gets to make profit on the account activation of that 2nd-hand game.

In the case of a 2nd-hand digital games market, it is literally unavoidable that a platform's services be used. Therefore, it is also unavoidable that platforms will be a part of any 2nd-hand digital games market. And they could charge fees for their involvement in the market.

Setting minimum fees, whether it's just for 2nd-hand game activation with a platform, or for all of listing, payment processing, transferring, and 2nd-hand game activation, will protect indies and small-title developers, and can easily make it so that it's cheaper to buy those games today brand new from "grey market" game license resellers than it would be to buy them through a 2nd-hand digital games market.

Fees could be hard-set, or they could scale as a % or a tier bracket according to the listing price or the current non-sale retail price for a game. There could be minimum fees. And additional fees could be justified by platforms having to maintain a registry of who sells what, who is lawfully entitled to activate which license, and that registry might need to be one that is shared by all digital games platform hosts, to prevent fraud, theft, duplicate activations (though, they already can't happen when a key can only be activated on a specific platform), and to settle disputes.

So, platforms, publishers, and indie developers can all be protected in the face of a 2nd-hand games market, and can make a 2nd-hand games market lucrative for themselves. I don't see the Paris High Court's ruling as reckless, clumsy, or not thought-out by the court. I instead view a lot of the responses to the ruling as being knee-jerk reactionary alarmism which is hyping up fears ahead of examining what the realistic changes to the market are likely to actually be.

Now, there are some arguments I've seen people bring up that makes digital goods seem like they're a whole new concept and are different than physical goods because they don't degrade, but they're actually neither new concepts or different in terms of degradation to property that has existed for centuries. And so here are refutations for some common misconceptions about digital goods and ownership concerns:

1.

The concept of non-degrading property is not new:

The first patent for an industrial invention was handed out in 1421 in Italy (1790 in the US). Since then, individuals and businesses have been benefiting massively from possessing property that doesn't degrade. IPs, copyrights, patents, are non-degrading property. Record labels have non-degrading digital masters. Book publishers have non-degrading manuscripts.

Non-degrading property never was a complaint or cause to claim that the law has been thrown for a loop so long as it was businesses and copyright-holders who were gaining more and more benefits over the decades from having non-degrading property. The idea that non-degrading property changes everything suddenly in 2019, only when consumers have suddenly realized that it can mean something for them, too, suggests to me there is unfair play at hand and that we are witnessing the expression of a conditioning of the masses by big businesses who have long acted as though the law is their private tool to be used only to set themselves up as evermore-domineering masters over consumers, who they see as their subjects. It's like the "consumer" people are imposing it upon themselves at this point after having been conditioned that they are just corporations' resources.

Regardless, non-degrading property isn't new. Businesses and copyright-holders have been benefiting themselves by it for centuries. So, the concept when applied to consumers shouldn't cause any hysteria or confusion. It's old-hat.

Regarding degradation, though, computing standards mean that an older program degrades in functionality as hardware and software standards evolve. Also, the appreciability of older software products changes for the market at-large due to new developments that make the older products seem more archaic, limited, unappealing graphics-wise... not to everybody, but to a huge chunk of the mainstream market. So, there is degradation with software products, but it is manifested in unique ways - unique ways that physical products often escape. So, it's like there the degradation merely expresses itself through different avenues.

2.

Regarding the idea that the first-sale doctrine (which stipulates that people are entitled to resell their copies of copyrighted works) applies to instances, and that there is something about a copy being non-degrading that makes it not an instance:

So... when George Lucas sold Star Wars to Disney, he didn't actually lose his right to distribute Star Wars and can right now sell Star Wars again, and again, to other companies who can then make their own Star Wars movies? Of course not. There is nothing about a property being hard-physical or intangible that decides whether the first-sale doctrine applies to it.

And there has never been a qualifier that each copy has some unique flaw or condition to make a copy a particular copy. Each copy that exists is a particular copy, and each copy that a person owns is a particular copy. Does the significance of having access to one copy versus another diminish when each copy is a perfect replication of the others? Yes, in a good way. But that's neither here nor there to the law's reason for stating that the first-sale doctrine applies to particular copies, and I think that detail actually has nothing to do with the identification of particular copies and doesn't factor into the first-sale doctrine. The particular copies are the definitive instances that belong to specific people.

3.

Regarding the idea that software might be different because it is not materialized, or is intangible:

A thing's physical or non-physical state doesn't determine whether it can be owned, sold, and purchased. What does everybody think Intellectual Property is? IPs are not really or necessarily materialized but they are still transferable property and goods when they are sold in transactions. What do people think a patent is? A copyright? Just like with non-degrading property, intangible property has existed for centuries, and even millennia.

Further, data has even more presence than something like a patent or copyright. Any defined data, such as a software program or any particular function of a software program, has a defined form to it, and when it's stored on any storage medium, it takes up real space and technological capacity. It has size, it has a specific form, it takes up presence, and it has specific identifiable capabilities and features. When it is being transferred between end-points in a network, it exists as particles, and particles have physical properties. A computer program is a defined form of data, and data has quantifiable presence.

And if data suddenly is different than hard-physical property and so it can't really be said there's ownership of it, then how does the publisher own it? And then how can people be arrested and charged for hacking of a state's computers and possession of their data and secrets? Obviously, in pre-existing law, data property is treated no different than a hard-physical property where it's the state, or big corporations, or somebody with a lot of money, who is the victim and is seeking action against whoever infringed upon their data property. The idea that it's different exclusively for the lowly peasant consumers is Stockholm Syndrome, and it means that our societies are not ones of justice and equality, but which are made up of different rules for different castes.

FUD is not helpful to any game ownership rights-based goals. Ownership means the right to make decision-making ownership over a thing. If you throw it out because you think doing so is necessary to protect developers and the creation of more games (and as shown in this post, it isn't), then you lose everything that goes with ownership including any right to preserve games which, in the case of non-ownership, would then not be yours to have any right to demand and seek legal enforcement of preservation over them.

 

[BTGBullseye]

A lot of people are looking at this as optimistically as possible... That is a mistake. Publishers and devs WILL fight this. Hard.

If you look at this with that in mind, and with regards to how well those same companies have done in the past regarding the same sort of thing, you will see that this is not going to turn out well for ANYONE. Either you'll get everything going to subscription services, or they'll be always online, or they just won't get made. (the latter is most likely what will happen to smaller devs) There is little or no chance that being able to resell digital games will help anything in any way. (except to line the pockets of a few who will game the system)

 

[Delicieuxz]

A lot of people are looking at this as optimistically as possible... That is a mistake. Publishers and devs WILL fight this. Hard.

Fighting it is what Valve was doing for the previous 4 years, and yet the Paris High Court's judgment has happened.

If you look at this with that in mind, and with regards to how well those same companies have done in the past regarding the same sort of thing, you will see that this is not going to turn out well for ANYONE. Either you'll get everything going to subscription services, or they'll be always online, or they just won't get made. (the latter is most likely what will happen to smaller devs) There is little or no chance that being able to resell digital games will help anything in any way. (except to line the pockets of a few who will game the system)

Regarding subscription services, we already have them coming out of every corner of the industry with there being no signs of that practice slowing down. So, they're here already. But it's unlikely that gamers will be willing or able to pay $50 every month to be on every subscription service that has a game they like. And subscription services cannot accommodate all games and all developers, anyway. That business model will only go so far - and it could be pretty far, but there will continue to be a for-sale game market.

Regarding the always-online part of your post, I don't see how online / offline changes anything about the Paris court ruling or game ownership. And so I don't expect any changes there.

Regarding games getting made, I don't think publishers will decide they don't want to make any money anymore just because people can resell their games. With proper fee systems in place, I think they should have their current revenue streams pretty much stable in an environment where 2nd-hand sales are enabled. Smaller developers will be protected in a 2nd-hand market situation if there are 2nd-hand game activation fees on platforms that ensure that 2nd-hand games are not cheaper than buying new from a "grey market" reseller.

 

[BTGBullseye]

Regarding subscription services, we already have them coming out of every corner of the industry with there being no signs of that practice slowing down. So, they're here already. But it's unlikely that gamers will be willing or able to pay $50 every month to be on every subscription service that has a game they like. And subscription services cannot accommodate all games and all developers, anyway. That business model will only go so far - and it could be pretty far, but there will continue to be a for-sale game market.

The problem with this is, there will most likely be a significant increase in games being marketed in this way, (subscription model) despite the market limitations. Don't underestimate the greed of these corporations, or their shortsightedness. (businesses are notorious for going after short-term profits to the detriment of long-term stability, their shareholders and board of directors usually mandate it)

Regarding the always-online part of your post, I don't see how online / offline changes anything about the Paris court ruling or game ownership. And so I don't expect any changes there.

The always online component allows publishers to control (to some extent) how long a game lasts. Once they shut down the server, regardless of what sort of licence they sold you, it becomes unusable. This has already happened to many games, so don't discount the publishers moving to that model. The way I hear it from some insiders is that there is already a few attempts underway to relegate several small but critical pieces of files to a login server, similar to Battlefield 3, except with smaller pieces, and more critical data that is less easily repaired without the original source. (making it effectively impossible to either pirate, play offline, or play after the company wants the game to end)

Regarding games getting made, I don't think publishers will decide they don't want to make any money anymore just because people can resell their games. With proper fee systems in place, I think they should have their current revenue streams pretty much stable in an environment where 2nd-hand sales are enabled. Smaller developers will be protected in a 2nd-hand market situation if there are 2nd-hand game activation fees on platforms that ensure that 2nd-hand games are not cheaper than buying new from a "grey market" reseller.

There are a few problems with this.

1. I doubt publishers will be hurt significantly by this, for a while... If they start losing too much money, they'll either scale back by liquidating devs, or by switching to the subscription model. The number of perpetual licence digitally distributed games will DEFINITELY be reduced, most likely by a lot.

2. These "proper fee systems" you talk about are most likely not legal at this point. You can't legally charge someone to sell their couch on cragslist, so why should it be possible to charge people to transfer digital software? (this IS the argument that will be used) Right now, there is literally no legal framework in place to support this type of market, and introducing it with minimal or no regulation like this WILL be very detrimental to every aspect of the digital market.

All that said, most devs are likely not going to notice many changes, apart from a significantly reduced income for games that have minimal or no replayability value. (like Frostpunk)

 

[reverendjoe]

So, hey, funny thing, Ross brings up Destiny 2 in the video, talking about the difficulty of companies selling consumers on the "your game is a limited time service" model. And today, I start up steam, and what's the first thing to pop up in the news? Destiny 2.

And it's going to be free to play. And you know what that means.

So, yeah, even assuming best case scenario, where games are treated as goods by the law, AND the courts are willing and able to enforce said laws consistently, you're going to be seeing even more of this: AAA titles using the same F2P financed by microtransactions model as Android garbage. Hell, we're going to be seeing a lot more of this in any case. It's a perfect setup for the game publishers: they stand to make even more money off of microtransactions than they would with a one-time game sale, and because they're not actually selling the game itself, they get to say it's not a good. You can still argue the stuff you buy with the microtransactions is a good, but stuff like that gets really woolly, especially when the microtransaction buys you in-game currency, for example. It's gonna be a lot harder to argue stuff like that in court, especially when the judge barely knows what a game is to begin with.

Oh, and a bonus: because people aren't paying for the game itself, this will encourage them to think of the game as more ephemeral, not as a good they bought, a tangible thing, but as more of a... I don't know what, exactly. A service? A free program you downloaded? Whatever it is, it's not something people will think of as owning, or having ownership rights to.

 

[Delicieuxz]

The problem with this is, there will most likely be a significant increase in games being marketed in this way, (subscription model) despite the market limitations. Don't underestimate the greed of these corporations, or their shortsightedness. (businesses are notorious for going after short-term profits to the detriment of long-term stability, their shareholders and board of directors usually mandate it)

Music and movies are commonly available via streaming and subscription services now. In fact, it may be the most popular way to access them. However, that hasn't stopped music and movies from also being sold. It will be the same with games.

I'm pretty sure Ross brought up the point of MMORPG saturation in the market. It will happen with subscription services, too.

The always online component allows publishers to control (to some extent) how long a game lasts. Once they shut down the server, regardless of what sort of licence they sold you, it becomes unusable. This has already happened to many games, so don't discount the publishers moving to that model. The way I hear it from some insiders is that there is already a few attempts underway to relegate several small but critical pieces of files to a login server, similar to Battlefield 3, except with smaller pieces, and more critical data that is less easily repaired without the original source. (making it effectively impossible to either pirate, play offline, or play after the company wants the game to end)

But that doesn't change whether or not game-reselling is facilitated, and that's something publishers are doing regardless. And if the Paris judgment still stands after appeal efforts, then a perpetual-license game which is always-online will have to be able to be resold just like a one that doesn't use always-online DRM.

Since there is no increase or decrease of publishers' control over a 2nd-hand market based on whether games use always-online DRM, I don't see always-online DRM plans changing around whether there's a 2nd-hand market or not.

If sold games use always-online DRM and it's law that games are the personal property of the people who buy them, then there's at least the avenue for people to pursue a right to have always-online DRM removed from their games upon the shutdown of the DRM servers. Without game ownership, people who pay for games don't have that.

There are a few problems with this.

1. I doubt publishers will be hurt significantly by this, for a while... If they start losing too much money, they'll either scale back by liquidating devs, or by switching to the subscription model. The number of perpetual licence digitally distributed games will DEFINITELY be reduced, most likely by a lot.

If platforms and publishers are able to come up with a system that maintains their revenue streams, such as the fee system I explored the idea of, then I think that they'll prefer to do that and maintain their revenue streams. Especially if the only reason that publishers oppose game ownership rights is because otherwise events could occur that would cut into their profits.

2. These "proper fee systems" you talk about are most likely not legal at this point. You can't legally charge someone to sell their couch on cragslist, so why should it be possible to charge people to transfer digital software? (this IS the argument that will be used) Right now, there is literally no legal framework in place to support this type of market, and introducing it with minimal or no regulation like this WILL be very detrimental to every aspect of the digital market.

Craigslist actually can legally charge people to sell their items through Craigslist - just like eBay, Kijiji, Amazon, and other other companies charge people to sell through their marketplaces. Craigslist doesn't charge for sales or for most listings through their marketplace because that just isn't their chosen business model, which is instead ad revenue and harvesting and selling user data. But, they could make it their business model.

 

[Delicieuxz]

2. These "proper fee systems" you talk about are most likely not legal at this point. You can't legally charge someone to sell their couch on cragslist, so why should it be possible to charge people to transfer digital software? (this IS the argument that will be used) Right now, there is literally no legal framework in place to support this type of market, and introducing it with minimal or no regulation like this WILL be very detrimental to every aspect of the digital market.

Here's some more information about this specific point.

The possible points to charge for fees that I've mentioned before are:

- listing fee

- payment processing fee

- game account de-activation fee

- 2nd-hand license activation fee on a different account

- a fee to cover maintenance of a registry to keep track of who owns and is entitled to have on their account which game

Things like listing and payment processing fees are just standard for marketplace services (eBay, Amazon, Paypal). The other listing fees are specific to a 2nd-hand games market, and as they're services that require development and maintenance costs, a provider of those services is entitled to recoup their expenses and likely to charge extra for providing the service - just like with every other service.

A 2nd-hand license activation fee to play a game on a different account is not a new concept. It has been considered by companies before:

https://www.cinemablend.com/games/Xbox-One-Used-Game-Activation-Fee-52-56040.html

https://www.engadget.com/2013/06/06/xbox-one-used-games-always-online/

https://www.gamesindustry.biz/articles/thq-to-charge-second-hand-users-for-online-play

And the idea was even implemented by some companies, including EA:

https://www.ea.com/news/online-pass-for-ea-sports-simulation-games

So, it can be done, and it has been done.

There is actually a 2nd-hand games market in development / early-access existence right now, called Robot Cache.

Interestingly, it's founded by PC RPG legend, pioneer, former publisher, and CEO of InXile (now owned by Microsoft), Brian Fargo.

Their website has an option to sign up for early access: https://robotcache.com/

And their latest blog post is from 1 month ago:  https://www.robotcache.com/blog

So, clearly, there are some different views on reselling games among game developers. And possibly also among publishers, with GoG being a supporter of people owning the games they purchase: "You buy it, you own it".



Ownership typically means the right to choose to dispose (to get rid of, such as by selling) of the thing that you own. So, I wonder what CD Projeck's view on the Paris ruling is.

I notice that the typical FUD about the market disruption a 2nd-hand market would pose presumes that the disruption specifically means that there would be no adaptation to it by platforms and publishers and that suddenly only 2nd-hand games would be available and no revenue would be going to publishers and developers.

I see that scenario as like watching The Road Warrior, where everybody supposedly decided to not rebuild but to just mod and drive around in their modded cars all the time and act crazy, and it all just happens somehow despite them being in a desert with no food production and no means to extract oil and make gas (there's just a magical never-exhausting supply of old cars with enough gas remaining in them around).

Well, that scenario, just like the FUD of the existence of a 2nd-hand games market, isn't realistic and isn't plausible or even possible. In reality, when disruption occurs, so does adaptation. A 2nd-hand market doesn't mean that platforms and publishers are suddenly unable to make money, especially when 2nd-hand market games still need to be activated with those platforms. It just means they set up new revenue avenues that apply the second-hand market. And that idea isn't new. Microsoft originally planned to do it with the Xbox One, I think there have been cases where the multiplayer component of 2nd-hand console games required an additional activation-pass purchase in order to use.

 

[Bilateralrope]

I'd like to see a source on the claim that the French Court is forcing Valve to make a code change allow people to sell individual games from their Steam account.

All the articles I've seen only talk about Valve having to change the Steam TOS, not any of the code. The downsides of second hand sales rely on the assumption that seling individual games is possible. If the ruling is only that the TOS must change, then we will only get to buy and sell Steam (or other store) accounts. So that means you get to choose between selling nothing, or selling your entire Steam library. Just like how you can't sell your cars paintjob without selling the car. If you buy a Steam account, now the games you want to play are split between multiple accounts, which is an annoyance that will discourage buyers. That's the same annoyance that's kept Steam on top of the PC digital distribution market for so long, except it gets bigger for every account a person buys.

So I'm thinking that if the ruling is that the TOS must change to make selling games/accounts allowed, but not a code change to make selling individual games possible, it's a good compromise. It sorts out ownership of live services and what happens to your game library when you die. But it doesn't lead to the problems that come with massive numbers of second hand sales because of the annoyances of splitting your library over multiple accounts.

The German court ruling means this is going to get appealed until it hits a court that can issue a ruling for all of Europe, unless this consumer group runs out of money first*. Even if this consumer group only targets Valve, other people will use the precedent against other stores. Australia was enough to get Steam to offer refunds worldwide, an European ruling is going to affect everyone. So we do need to watch this.

*Does anyone know how they are funded ?

If they are government funded, then running out of money seems unlikely. If they take donations, I'm going to seriously think about donating to them.

 

[BTGBullseye]

If the ruling is only that the TOS must change, then we will only get to buy and sell Steam (or other store) accounts.

Unfortunately, that will run exactly opposite existing USA law. You can actually get federal jail time for "sharing" an account like that. (if the federal government so chooses to target you thus)

 

[Bilateralrope]

Unfortunately, that will run exactly opposite existing USA law. You can actually get federal jail time for "sharing" an account like that. (if the federal government so chooses to target you thus)

Even if the owner of the account gives you permission to access it ?

Because giving permission for the new owner to access the account is an implicit part of any sale.

 

[Bilateralrope]

A 2nd-hand license activation fee to play a game on a different account is not a new concept. It has been considered by companies before:

https://www.cinemablend.com/games/Xbox-One-Used-Game-Activation-Fee-52-56040.html

https://www.engadget.com/2013/06/06/xbox-one-used-games-always-online/

https://www.gamesindustry.biz/articles/thq-to-charge-second-hand-users-for-online-play

And the idea was even implemented by some companies, including EA:

https://www.ea.com/news/online-pass-for-ea-sports-simulation-games

So, it can be done, and it has been done.

I don't see how that second hand activation fee can comply with the ruling. This court ruling is that you get to sell your copy of a game because you own that copy. The second hand activation fee is saying that there is part of your copy of the game that you do not own. What makes the content restricted by the second hand activation fee so special that it's exempt from the ruling ?

If this ruling is that the digital stores have to allow you to sell individual games, what I see happening is:

 - Valve will just have you selling games second hand via the Steam Market, which already gives the developer a cut of trading card and in-game item sales that happen on it. So the developers will get a cut of any second hand sales, the only question is the size of their cut. If Valve allows people to arrange sales via other websites*, the Steam market will still dominate due to it being more convenient and having less problems from scammers.

 - The Epic store might have problems. This is a store that has been promising simple things like a wishlist or shopping cart for over 6 months. A store where the lack of a shopping cart caused customers to trip the stores own anti-fraud system in their first major sale. So I question their ability to comply with the ruling.

 - GOG might try to an argue for an exception. Their strict policy against DRM means that there is a risk of people unknowingly running a copy of a game from their computer after they have sold it. Sure, Steam's DRM is easily cracked, but that still requires the pirate to take intentional action to crack it, so they should know they are doing something wrong. I'm not sure if GOG could get an "accidental piracy" exception, but I expect them to try. If they get it, things get interesting.

*Which only requires Valve to implement a way for you to send your game from your Steam account to another.