Valve Corporation, the operator of the popular Steam online games platform, successfully withstood some pressure in Germany. Starting in 2013, the Verbraucherzentrale Bundesverband, an important German consumer protection organization, filed a law suit against Valve for alleged violation of consumer rights. The subject matter of the complaint was a clause in the terms and conditions of the Steam platform, according to which a user may not transfer his user account to someone else. We reported on this matter on this website back then (Link).
The Verbraucherzentrale argued that, following the latest decisions by the European Court of Justice the marketing and transfer of used licenses for computer programs downloaded from the internet is legal and cannot be contested by the original copyright holders. (Judgment of the European Court of Justice of 3 July 2012, C‑128/11 – UsedSoft GmbH vs.Oracle International Corp., Marketing of used licenses for computer programs downloaded from the internet – Directive 2009/24/EC – Articles 4(2) and 5(1) – Exhaustion of the distribution right – Concept of lawful acquirer, Link). To a certain extent, this overturned a previous decision by the German Federal Court of Justice which had ruled in 2010 that the transfer of user accounts as such may be restricted when a game is sold which can only be activated with online registration, even if this would effectively make the resale of the game impossible (BGH, Urteil vom11.02.2010, Az.I ZR 178/08 – Half-Life 2, Link). Under the new circumstances, the Verbraucherzentrale argued, Valve’s new policy of restricting the transfer of user accounts was in conflict with European and German law, because it binds a user permanently to his account and will not let him assign it to someone else, thereby effectively preventing the sale of the software purchased under this account, which following the ECJ judgment should be possible.
The Verbraucherzentrale took the case to court. However, both the Berlin District Court (Landgericht Berlin, Urteil vom 21.01.2014, Az. 15 O 56/13) in the trial stage, and then the Berlin Court of Appeals (Kammergericht, Urteil vom 27.08.2015, Az. 23 U 42/14) ruled in Steam’s favor.
The courts found that the precedent decided by the European Court of Justice, as cited above, only applied in cases where the game software in question is purchased and downloaded in its entirety and can then be activated and played locally.
This, the Berlin courts find, was not the case in regard to the Steam user account. In this case, the games can only be played through the account. In other words, the Steam user purchases not the game as such, but the game in combination with the functions and services provided continuously through the individual Steam account. These additional functionalities and services are individualized, and they do not fall under the rule of copyright exhaustion.
Thus, Steam’s policy of prohibiting the transfer of user accounts does not come into conflict with the principles of (German and European) copyright law.
The Verbraucherzentrale’s challenge was defeated, and Steam users must learn to live with the fact that their accounts will remain their own and cannot be sold or otherwise transferred to others.
It can be said that these principles may have to be considered in all similar cases where online games and user accounts come into play and the question arises whether these can be sold and purchased among players and users, and whether the game providers may or may not prohibit such transfers.
For Steam, the pressure seems to have gone down for now.
Date: February 2016