https://store.steampowered.com/app/490990/Penguins_Cretins/

https://www.youtube.com/watch?v=Sj58GPFILbc

https://steamcommunity.com/groups/Sentinels_of_the_Store/announcements/detail/2268072622345212445

I was just going to make this a mini-update on the original post we made, but I found this to be something incredibly important and something I feel is essential to highlight, both to Valve or the Steam team and to Steam consumers, as this is a far more broader problem than what I was originally under the impression of when I wrote the original article. The reason for this is for two reasons, both of which will be talked about: the legality of what's been done here and also how the case of Penguins Cretins wasn't an isolated case.


After the original article for Penguins Cretins went up, a user on Twitter went ahead and sent the article we made to a few different lawyers and one of them did take up the user's offer to further look into the case. The lawyer in question was Richard Hoeg of the Hoeg's Law YouTube channel. Richard made an incredibly well-informed and high quality 25 minute video delving into everything that was covered in the article and of any potential legal violations.

When I wrote the original article, I did assume that there would have been some form of legal violation with regards to this, but I'm not a lawyer so I don't talk about matters I don't understand. I originally assumed that the game would be violating some form of consumer rights law since it's delivering a product that wasn't purchased by the user. However, Richard stated that while that may not necessarily be the case, there are other grounds in which Valve and the developers could be guilty of violating Good Faith and also violating Fair Dealing.

While I will go into these, I still do highly recommend watching Richard's video to get the full details of everything and to have it all explained and laid out by an actual lawyer who knows what he's talking about. Everything I mention here will be based off the details portrayed in Richard's video.

When looking into the legalities of the ordeal, Richard started off by showcasing the Steam Subscriber Agreement, this is what all Steam users agree to when they sign up to use Steam and its products. Richard highlights the contents of the agreement highlighted under the section of "Subscriptions; Content and Services."

Originally posted by Steam Subscriber Agreement:

The Steam client software and any other software, content, and updates you download or access via Steam, including but not limited to Valve or third-party video games and in-game content, software associated with Hardware and any virtual items you trade, sell or purchase in a Steam Subscription Marketplace are referred to in this Agreement as "Content and Services;"

The agreement goes on to later state:

Originally posted by Steam Subscriber Agreement:

Each Subscription allows you to access particular Content and Services. Some Subscriptions may impose additional terms specific to that Subscription ("Subscription Terms") (for example, an end user license agreement specific to a particular game, or terms of use specific to a particular product or feature of Steam).

One unfortunate aspect of Steam is that in a legal sense, as Richard explains, you never actually own the games. You just have a license to use them, Valve/Steam are giving you a license to access specific content. The copy of PlayerUnknown's Battlegrounds you "own" you don't actually "own" in a legal sense, what you have is a license from Valve and Steam to access the contents. With this, it enters into one of the common criticisms of "games-as-a-service" where customers don't own the games they buy, it's merely being licensed to them. This is brought up later by Richard in application to Penguins Cretins and is an important point to note that I didn't make mention of in my original article as it showcases a bleak future in terms as what "games-as-a-service" could look like. This is the reason why in the agreement purchasers are referred to as "subscribers" to influence further that people that purchase the games aren't owners of their products and helps further in terms as to what the association is between Valve and their customers, and also the customer possession rights of what they purchase from Steam.

In another part of the agreement under the section of "General Content and Services License" it's stated:

Originally posted by Steam Subscriber Agreement:

Steam and your Subscription(s) require the download and installation of Content and Services onto your computer. Valve hereby grants, and you accept, a non-exclusive license and right, to use the Content and Services for your personal, non-commercial use (except where commercial use is expressly allowed herein or in the applicable Subscription Terms). This license ends upon termination of (a) this Agreement or (b) a Subscription that includes the license.

Adding onto this, arguably the most important and relevant part of the agreement, it states:

Originally posted by Steam Subscriber Agreement:

For reasons that include, without limitation, system security, stability, and multiplayer interoperability, Steam may need to automatically update, pre-load, create new versions of or otherwise enhance the Content and Services and accordingly, the system requirements to use the Content and Services may change over time. You consent to such automatic updating.

Now, these quotes create an image of Steam, Valve and their developers holding a right to do whatever they want with the "service" and "subscriptions" offered to you. You might think "shucks, guess these guys can literally just do whatever they want." Well, no. And this is where things get VERY interesting.

Richard's speciality seemingly is centred on contract law, and he states that contract law is only enforceable on two separate metrics. He talks about how Steam does hold the rights necessary to do as they wish, but it's not as open and shut of a case as that, as these two other metrics prove to be the case especially with Penguins Cretins. Richard states that while there is the contractual agreement between Steam and their "subscribers" which is the first metric, the second is that of the "equitable items." This is the case in which courts don't have to stick to what is printed on the contract due to a perceived injustice if they believe they do favour the perceived unfair clauses and agreements of a contract when it comes down to case by case basis scenarios.

This is the reason equitable doctrines exist. To allow courts to override agreements made between entities if the action taken is seen to be unfair and the clauses of the contract are being intentionally abused. This is heavily used in courts in instances of heavy implications when it comes to contracts. Whether this is promises that are implied rather than given or creating a false picture as to what may happen when entering the agreement, the courts can exercise the use of these equitable doctrines to allow them to arrive at a more fair conclusion for people believed to have been wronged but some clauses of a contract prevent them from having as good of a case.

Richard states in this video, that if the matter of Penguins Cretins is pursued further, and Valve continues to take no action and they choose to try and defend their rights centred on the clauses of the subscriber agreement, Richard believes that despite this contract existing, the judge would rule in favour of the Steam users that were wronged, because of these equitable doctrines that exist, and he elaborates as the video goes on.

Richard believes that both Valve and HFM Games are operating outside the boundaries of what's laid out in the agreements, and would be caught out as a result of doctrines centred on Good Faith & Fair Dealing[www.americanbar.org].

This is where the important stuff comes in and where the violations on both Steam and HFM Games may lie. Now unfortunately, the definitions of these are flimsy as they can change depending on who is overlooking the case. The definition of these can only be implied towards a court's interpretation of the case that they're looking at, so there's only a general description offered as a result. However, as I said, Richard does believe there is a good chance that Good Faith & Fair Dealing would be applied in this scenario:

Originally posted by American Bar Association:

In general, every contract contains an implied duty of good faith and fair dealing...."Good faith” has generally been defined as honesty in a person’s conduct during the agreement....“Fair dealing” usually requires more than just honesty. It generally requires that a party cannot act contrary to the “spirit” of the contract, even if you give the opposing party notice that you intend to do so. In general, the duty of good faith and fair dealing means, for example, that parties cannot evade the spirit of the bargain, lack diligence or slack off, perform incorrectly on purpose, abuse their power when specifying the terms of a contract, or interfere with or fail to cooperate in the other party’s performance.

Originally posted by Delaware Litigation:

The court explained the two common situations where the implied covenant (of Good Faith and Fair Dealing) often applies. The first, at issue in this case, is when it is argued that a situation has arisen that was unforeseen by the parties and where the agreement’s express terms do not cover what should happen.

This last excerpt specifically holds heavy implication towards what's happened with Penguins Cretins. Did the customer expect to get this game? Did they expect the game to change in the way it did?

Originally posted by Delaware Litigation:

The next situation is when a party to the contract is given discretion to act as to a certain subject and it is argued that the discretion has been used in a way that is impliedly proscribed by the contract’s express terms.

Richard points to the above quote specifically as holding the most weight to this subject. Richard describes when users originally bought Aiball: Drunks, the subscriber agreement granted stipulations towards updating and/or modifying the content in any way they wanted. The said content that got licensed to users was then completely stripped away. Richard believes it's on this point that there has been a breach of Good Faith & Fair Dealing in the case of Penguins Cretins. The agreement covered the issuing of a different product than what was later delivered. The wording offered in the subscriber agreement also makes use of words like "update" which can mean to enhance, to improve, to make better, which Richard thinks will also be key in this matter.

Originally posted by Delaware Litigation:

“When a contract confers discretion on one party, the implied covenant requires that the discretion be used reasonably and in good faith.”

It's at this point, that the quote given to us from Steam user TaD comes in useful, as the representative placed heavy emphasis on the game being in early access and subject to change.

Originally posted by Steam:

Please keep in mind that the game is listed as an Early Access game. That means that the name and the content of the game are not a finished product and are subject to change at any given time without notice.

It's at this point where Richard showcases that Steam's given description of early access does not align with what's happened here. Showcasing the Steamworks documentation of Early Access in relation to his point, and the early access FAQ page. It's stated on the FAQ page that early access is described as games that "evolve as you play them." This doesn't mean take away, detract from the experience, or completely replaced with a worse alternative. This can lead towards people that sign the agreement to expect early access games to continuously improve and build upon it's self, not in this instance where the original product is entirely destroyed and replaced with something else.

Richard, also being the smart guy he is, even picks up on another piece of descriptive terminology on Steam recommending to customers how they should choose to purchase early access games.

Originally posted by Steam:

When you buy an Early Access game, you should consider what the game is like to play right now....if you aren't excited to play the game in its current state, then hold off and wait until the next update

Richard says this can be used to showcase that Steam recommended for users who liked the looks of Aiball: Drunks to buy it only for it to be swapped out by something completely different. Richard of course points out this point is included because Valve acknowledge that there exists early access products that never get finished and so they want to make sure people are happy investing in the game in its as-is state and aren't buying into promises the developers are making. However, as is shown in this case, there's an alternative where this works against them as it's encouraging the purchase that profits both Valve and the developers of the products based on the current and as-is state of a game. Purchasers of Aiball: Drunks that invest in that game of "a soccer physics games" that then see it turn into a penguin obstacle course game, Richard looks at that and sees Steam as encouraging the purchases that those people had made on the "as-is" status. Leading to it garnering some responsibility of account on Valve and Steam's end for those purchases happening because of how Steam encourages evaluation and judgement of games that are in early access.

For added context, the main Early Access page FAQ is linked at the top of every early access description on Steam, highlighting further the potential influence that these words hold on purchases of early access products.

Richard even went ahead and reflected on the quote supplied from Steam to TaD and described the reply as "wanting." Richard highlights Valve even tell their developers in the Steamworks document:

Originally posted by Steam:

Customers should be buying your game based on its current state, not on promises of a future that may or may not be realized.

Richard even highlights the potentials of fraud allegations on Steam and the developer as to earning money off of a product that they went on to replace and take away from legitimate purchasers.

Richard also brings to attention this quote at the end of the Steamworks document:

Originally posted by Steam:

We take our relationship with customers seriously, so if you choose to cancel development of a game and retire it from the store, we will not republish it again later and we may offer refunds to any users who purchased it. Treating customers fairly is the most important thing to us.

And speaking personally, Valve's actions up until this point with this game, have not reflected this belief. The Steam support representative never uttered any mention of potential refunding, didn't seem to look too much into the game in question and gave a, as Richard stated, wanting answer. Not taking action on a developer for stripping a product away from buyers. Being negligent in seemingly not caring at all about this matter is appalling. I had a brief e-mail exchange with a couple of Steam employees on Monday about this game. This was after TaD had gotten their statement from the customer support and they thanked me for bringing it to their attention, and agreed that it warranted a second look. Still, nothing has been done. I've received no further replies and the game is still up for sale and taking in purchases, even after Valve have been made aware of what's happened.

You can't say you respect and take customer relationships seriously when you issue such a dismissive response as to the likes of what TaD had received.

I also wish to extend on a point Richard mentions I didn't mention in my original article and that's the point of this game could be showcasing what a bleak future could replicate in the future of games-as-a-service if instances like this can occur freely and with no curation or oversight.

I do also want to extend my thanks once again to Richard for his informative video, it has definitely supplied much more weight to this matter with an actual lawyer making comment on it to reflect the seriousness that Valve are seemingly neglecting.


In addition to the conclusions and the judgements given by Richard in his video, after the article went up, a number of other users contacted me and shared with me other instances in which similar things had happened. Granted, these are probably less extreme than the case of Penguins Cretins in that the Operating Systems just ended up not being able to run the game, but it was still a large-scale switch that happened on games. I also included these when I was speaking to Valve on the matter, so they are aware of this also happening not just in the case of Penguins Cretins. I also want to share some of these with you all to reflect the greater severity as to how long this been happening for and how many games it's happened to.


The Mute Cynic of the Early Access Watcher Steam group & curator noted to me a similar instance happened with a game now called Epic Royal.

https://store.steampowered.com/app/744760/Epic_Royal/

Epic Royal is a 100 player online battle royal game. The game was actually previously called Integrity. This game was particularly interesting, as it got some level of infamy because it tried to pass a cosmetic item from Z1: Battle Royale under Integrity's marketplace at a ridiculous price. Integrity also wasn't an online battle royale game. Integrity was instead a single player and multiplayer open-world survival game, with your typical tropes like hunger, thirst, the works, just done poorly though. The differences and changes can be observed between what is shown in a video from Jim Sterling in November 2017 and the current version on the Steam store page:

https://www.youtube.com/watch?v=5DyGphyhOtE

The SteamDB page for Epic Royal even still has its depot[steamdb.info] named "Integrity" and as normal the changes can be seen in the game's history tab back in July 2018[steamdb.info].

People that bought and invested in a semi-open world survival game now instead have a multiplayer only battle royal game. With Integrity at least there was a single player mode that people could play if they couldn't harass their friends into playing a game of such low quality with them, with Epic Royal, there is only a multiplayer mode, and with the game having an all-time peak of 5[steamdb.info] shows clear problems for a game supposedly built to hold 100 players at once.


It doesn't stop there. Surugu8 on Twitter pointed me towards Tale of Fortune. This is probably the best and most laughable example, more funny than a physics soccer game being replaced by penguins. Tale of Fortune was originally an action game where you play a pirate looking for fortune in a voxel esque graphic art style. Now, it's been replaced with a hentai game, now marked for adults only. But of course the previous purchasers didn't get this pre-emptive warning meaning that little Timmy across the road who pestered his parents to get him his pirate game now has anime tits readily accessible to him.

https://store.steampowered.com/app/995210/Tale_of_Fortune/

Twitter user CaffeineMeme also looked into this one themselves and found potentially other causes for concern with this game, including swapping out games repeatedly with it going on to change its name to such stuff like "Neon Pong"[steamdb.info] and "I Wish You..."[steamdb.info] to also altering the game's tags repeatedly and also switching on[steamdb.info] and off[steamdb.info] the VR compatibility. And in addition to that, the tags received persistent changes, almost like they were describing entirely different games.


Steam user まりさ pointed towards an old forgotten case that I actually recall doing the same thing some years ago, Voxelized.

https://store.steampowered.com/app/344040/Voxelized/

Not only glancing past the fact this was developed and published by the guy behind the infamous Steam scam Journey of the Light and Valve continuing to offer a platform to a man that has shown to hold no respect to Steam customers whatsoever despite Valve saying they take their relationship with customers seriously, but Voxelized was once upon a time a MineCraft clone. It then transitioned into an asset flip from the Unreal Engine marketplace, then another one, and then finally to what it is today and that's a game where you play as a knight inside the castle walls of a village with literally no content in it. You literally just run around an environment with nothing to do.

https://www.youtube.com/watch?v=mSkUVEJLGMg

The above video skips out the transitions of 2 other versions between the original version he describes and the final "knight" version. The game went as follows:

MineCraft clone -> MineCraft Asset Flip with poor optimisation -> Another different MineCraft asset flip -> Knight game.

https://www.youtube.com/watch?v=lAu2oC5PHfQ

https://www.youtube.com/watch?v=hcZmEyyMlEo


https://store.steampowered.com/app/786640/Back_to_the_80s/

And then last but not least, CaffeineMeme on Twitter alerted me about another instance in Back to the 80's. A retro style arcade game that according to CaffeineMeme previously went under the name "Cthulhu". Cthulhu was supposedly a side-scrolling shooter according to CaffeineMeme. There's evidence suggesting this being the case as SteamDB does log a change in name[steamdb.info] along with a change in genres[steamdb.info] and tags that indicate a completely different game got posted in May 2018.


Like with what Richard called for, Valve need to firstly make updates and altercations to their early access guidelines as it is clearly being abused not just by these developers and through this process but in general. But also, Valve should not be standing idly by and allowing these cases to persist. These games have ripped off their customers, with one of the developers even having a past record of scamming people and outright misrepresenting his products and yet Valve still do business with him even knowing this information. I want to continue to persist with this matter as I do think it's important that these cases should not be ignored as it's already happened more times than I though it had already and it isn't right for customers to pay for these games and have it completely removed, changed for the worst, changed in its entirety, they deserve to get what they've paid for. With regards to these developers, if they want to post these games fine, but do it the normal way and pay the submission fee for a new app. They shouldn't be replacing existing apps, and in turn, screwing their customers over.

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