Dematerialized distribution of video games: Everything needs to be reviewed?

By judgment dated September 17, 2019, the Paris High Court granted most of the requests from the UFC-Que Choisir association, aimed at declaring as abusive the main provisions of the general conditions of the company Valve (Steam ).

In this particularly long judgment (74 pages) the court carefully studies clause by clause, in order to determine their possibly abusive nature with regard to consumer law, personal data law, and intellectual property law.

If the approach is classic, one cannot help but feel a certain uneasiness throughout reading the decision.

Let us recall that the clause is intended to be abusive and likely to create a significant imbalance between, on the one hand, the rights and obligations imposed on professionals and, on the other hand, the rights and obligations weighing on consumers.

However, although we must obviously leave the analysis of the disputed clauses to the judicial debate, we can nevertheless regret that the decision does not include any reference to an economic debate. Indeed, certainly the reading of an isolated clause may seem to highlight a significant imbalance, but should the court not also have questioned the overall coherence of the economic model proposed by Steam, and integrated this parameter into its reflection ?

Another question also seems legitimate. The court’s analysis is conducted with reference to a “average consumer“. But a careful reading of the judgment leaves one a little perplexed, and prompts one to wonder whether the “consumer“, as imagined by the court, really exists. This consumer indeed seems particularly unreflective, since he is not likely to understand – according to the court – the meaning of the obligation to behave respectfully. being “guided by common sense and following basic rules of behavior“. However, this formulation evokes the obligation to “behave like a good father“well known to lawyers and widely accepted in contractual matters. The “a good family’s father“is the one who adopts behavior consistent with custom and what can legitimately be expected of him. The notion of “a good family’s father” exists precisely because it is not materially possible to anticipate all behaviors and situations. We therefore resort to a sufficiently explicit generic criterion, and supposed to be able to be understood by everyone… By everyone, but obviously not by the consumer who has subscribed to a Conversely, the court seems to consider that this same consumer must be able to understand and evaluate independently all the provisions contained in the general conditions Obviously, many professionals have made a specialty of it. to write general conditions that are incomprehensible, contradictory or prohibit any recourse. But must we still require that the general conditions be written in such a way that each of their terms is understandable by the consumer, as if he were an informed legal professional? It is therefore surprising to present, on the one hand, the consumer as particularly ignorant and, on the other hand, to demand that he understand all the provisions of the general conditions without having to resort to a legal professional.

Transfer of player-generated content

On the merits, the judgment provides two extremely important clarifications. One concerns content generated by players and the other, the right to resell a downloaded game on a dematerialized distribution platform.

Regarding player-generated content, in a fairly standard manner, Steam’s general conditions provide that the related rights are transferred to Steam as they are created.

The court sanctions this mechanism both on the basis of intellectual property law and that of consumer law.

Regarding intellectual property, the judgment states:

“By granting the provider of a service a ”non-exclusive” ”global” right and ”for the entire period of validity of the intellectual property rights” ”to use, reproduce, modify, distribute, transmit , transcode, translate, distribute, otherwise communicate, and publicly display and perform (the) User Generated Content, and create derivative works therefrom, for the purposes of business, distribution and the promotion of the Steam service, Steam games and other Steam offers” on all ”user-generated content” that may be protected by copyright, free of charge – the clause not mentioning any terms of remuneration for the virtual content creator – without sufficiently specifying the nature of the rights conferred and the authorized uses, clause no. 6 of the Subscription Agreement is contrary to the requirements of article L 131-1, L. 131-2, L. 131-3 of the Intellectual Property Code, which require the beneficiary of the transfer to specify the intended content, the rights conferred as well as the uses authorized by the author of the transfer. protected content.
This clause, illegal with regard to the aforementioned provisions, will therefore be deemed unwritten“.

The transfer of content generated by players would therefore not be prohibited in itself, but would require the extent of the rights transferred to be further clarified.

Unfortunately the court continues its analysis in the field of consumer law, and seems to indicate that the absence of remuneration justifies the clause being also qualified as abusive:

“In view of the above, the criticized clause is also abusive within the meaning of Article L. 212-1 of the Consumer Code, in that its purpose or effect is to create, to the detriment of the consumer, a significant imbalance between the rights and obligations of the parties to the contract“.

It is certainly possible to provide a mechanism for remuneration of player-contributors, but this mechanism can only be evaluated within the overall framework of the video game ecosystem. It is regrettable that the court did not give more details on the nature of the remuneration which would have allowed the clause to escape qualification.abusive“.

Resale of downloaded games

Finally, the judgment is already causing a lot of talk because it rules for the first time on the legality of the ban on “resale“dematerialized video games.

The court sanctions the ban on “resale“by positing as a principle:

“that it does not matter whether or not the work is incorporated into a material medium; whether it was transferred by a sale (or) another method than the sale, the exhaustion of the distribution right applies regardless of the method of distribution of the video game, such as that consisting of the placing on the market by download.

Consequently, the holder of the right concerned can no longer oppose the resale of this copy (or copy) even if the initial purchase is made by download. The software publisher (or its assigns) can no longer oppose the resale of this copy or copy, notwithstanding the existence of contractual provisions prohibiting a subsequent transfer.

As a reminder, “exhaustion of the distribution right” is a fundamental principle in intellectual property which provides that once the rights holder has placed a product on the market, he cannot (with certain exceptions) continue to control successive sales. In other words, he cannot “sell” the product only once. In the past, Community case law had already ruled on the application of the principle of exhaustion of rights for software, but this is the first time (at least in France) that this principle is extended to dematerialized video games.

Obviously this is very good news for players and very bad news for publishers and distribution platforms. But here again, one can wonder if the court did not throw a wrench in the matter. Indeed, the downloaded games are not strictly speaking “sold” but are the subject of a license. However, the court seems not to wish to enter into the debate relating to the difference between a contract for the assignment of rights (a sale) and a contract for the license of rights (a rental). Indeed, whether the game is placed on the market via a transfer or a license of rights should not amount to the same thing. If the application of the principle of exhaustion of rights to a download following a transfer of rights seems understandable, its application to a game made available via a license, raises many questions. This is obviously a particularly complex problem which would call for numerous comments, but we can regret that this problem is barely mentioned in the judgment.

Finally, it should be remembered that the decision of the Paris High Court was rendered at first instance and that, given the issues at stake, it will probably be the subject of an appeal and then an appeal to the Supreme Court.

The story is therefore not over but in the meantime, distribution platforms should consider reviewing their general conditions…

Henri Leben
Attorneys
Lecturer in video game law
Aix-Marseille University