Steam's New Subscriber Agreement

Earlier this week Valve caused a stir when they updated their Steam Subscriber Agreement to include what is colloquially known as an "Arbitration Clause" which I have quoted after the break. Suffice to say this new addition has aggravated many, lending ammunition to those that want to claim that Valve is just as "bad" as EA and that it's "fanboys" are merely overlooking a myriad of faults in order to white knight their favorite system. Ironically, I am surprised less by the fact that Valve has suddenly included this section than I am by that it took them this long to get it in there.
A Brief History Lesson

As I suspect not every one of my readers is pursuing a law degree I thought a very brief "Explain like I'm 5" version of the sudden emergence of the "Arbitration Clause". Simply by being able to read this post you've probably agreed to a few, and probably do more frequently than you release. As promised, here is Steam's, with the important bits highlighted.

YOU AND VALVE AGREE TO RESOLVE ALL DISPUTES AND CLAIMS BETWEEN US IN INDIVIDUAL BINDING ARBITRATION. THAT INCLUDES, BUT IS NOT LIMITED TO, ANY CLAIMS ARISING OUT OF OR RELATING TO: (i) ANY ASPECT OF THE RELATIONSHIP BETWEEN US; (ii) THIS AGREEMENT; OR (iii) YOUR USE OF STEAM, YOUR ACCOUNT OR THE SOFTWARE. IT APPLIES REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED IN CONTRACT, TORT, STATUTE, FRAUD, UNFAIR COMPETITION, MISREPRESENTATION OR ANY OTHER LEGAL THEORY.

Steam Subscriber Agreement, Subsection 12: Dispute Resolution/Binding Arbitration/Class Action Waiver

All caps and big words aside, what essentially this means is that rather than forming a Class and heading to trial, you are agreeing to settle your disputes one-on-one with Valve. Now in all fairness there is some benefit to this; class actions take a long time, are complicated, and often work out better for the attorneys than the class. However, they do have a certain "punch" that can only come from having dozens (or hundreds) of people on-board. They tend to make the news and the majority of people tend to sympathize with the "little guy" over the corporation. Class Actions are typically governed by Federal Rule of Civil Procedure 23.

Arbitration clauses have been around for a long time, but their ability to supersede class action lawsuits was cemented by the case of AT&T Mobility v. Concepcion, in which the Supreme Court essentially allowed a person to contract away their ability to form a class action suit in a standard-form contract.

Evil Corporations!...or just ass covering?

The Steam Subscriber Agreement and most others like it are a Standard-Form contracts, the majority of contracts one sees these days. They are usually meant to be distributed en-masse and are usually written entirely by the drafter with no input from the other party. While these contracts might feel unfair (and arguably are) to the consumer, the court system is aware of this and the consumer is protected by an important doctrine: a contract is always interpreted in favor of the non-drafting party.

In other words, if they left something out or had an ambiguous clause, then most likely (unless it flies in the face of all reason) the court will rule in favor of the non-drafting party. Not only that, but courts tend to assume a level of sophistication from corporations and businesses that they don't necessarily expect from the consumer (probably because the corporations can hire fancy lawyers).

So really, what we're seeing in this case is Valve covering its proverbial ass. Imagine if you will if they did NOT have this sort of clause, then tried to ask for arbitration. The judge would probably laugh them out of court. What we're actually seeing is just good lawyer-ing by Valve's counsel (who frankly should have added this a while ago).

I think the masses ready to wave torches and pitchforks should recall that we are now in August 2012, Concepcion was decided in April 2011, over a year ago. Valve has basically given a long "grace" period to allow the decision to sink in before adopting this term (which by the way, you have approximately 27 to disagree with as of this posting). The companies I would be more worried about are those that wrote that in the day following the ruling.

So while it may feel callous that Valve has slipped it into the contract, they aren't doing anything necessarily underhanded. Blizzard's EULA has the same clause, as does Origin's. Valve made a very public display of it, see the below screenshot.

Notice the highlighted portion, this is a screenshot from Steam.

What is worth note is the scroll bar; you would see this even if you did not scroll at all, it was right there in front of you. At least Valve had the decency to point out the change and asks you to read it. They even highlighted it with a bright color to draw the eye.

It might annoy us that they are including such a clause, but at this point it's just a part of business. In my opinion including a clause like this does not make them "evil" it makes them "normal". Certainly we should keep an eye on every corporation because it is very easy for them to fall from grace and become the next Activision or EA, but I do not see this as a step down the path to the dark side.