By Luke Mattison
In 2015, the French consumer advocacy organization, UFC-Que Choisir, took American video game giant, Valve, to court over the company’s policy of disallowing program resale on its digital marketplace, Steam. Steam is currently the most popular video game and program marketplace in the world. If successful, UFC-Que Choisier’s efforts could radically change the nature of computer program distribution around the world.
Earlier this month, the UFC-Que Choisir won a verdict stating that Valve had to change the policy on its digital storefront to allow users to resell their digital games and products to other users. Although Valve is appealing the ruling, it could have major ramifications for how digital content is distributed, as a previous successful suit against the company in Australia led to Valve implementing a refund policy on its Steam platform worldwide. Valve’s decisions regarding Steam are noteworthy because the company controls such a large portion of the market, and can essentially dictate market practices. Some even suggest that Steam holds a monopoly on the video game market. Regardless of whether UFC-Que Choisir’s action successfully prompts Valve to extend the newfound digital resale policy to the United States or not, this new approach to digital property should have tech companies worried.
The French government refers to Valve’s products as “dematerialized games,” or products without any sort of physical support, such as a product sold via a CD rom or a cartridge. These dematerialized games made up 46% of all games purchased within France during 2018, amounting to more than 1.8 billion euros in total revenue. The amount of money at stake in both the video game market and its sub-market of dematerialized game sales is even more apparent when looking at the massive United States market. In 2018, the United States alone saw $43.3 billion in video game revenue, with $35.8 billion of that involving what the French government would consider dematerialized games. The industry is growing, too, with the US market seeing an 18% increase in the sale of both video games generally and dematerialized games as a category from 2017 to 2018. With this much money at stake, the UFC-Que Choisir’s ruling threatens to disrupt the billion dollar industry by introducing a new competitor to video game publishers in the form of low-cost resold games.
While Valve controls the lion’s share of the dematerialized games market, they have garnered a good reputation from their customers due to their frequent sales and fair pricing. Although Valve has not necessarily abused its position as the dominant force in the market for dematerialized games, this should not protect them from regulation. A firm with monopoly power is not immune from regulation simply because they do not wield their power in an anticompetitive way. If Valve were to allow selling of used dematerialized games on its platform within the United States, either voluntarily by way of the UFC-Que Choisir’s, ruling or through similar litigation within the US, the additional competition would lead to better prices for consumers from both Valve and all of Valve’s competitors. Ultimately, this case will remain a threat to the bottom line of dematerialized game distributors and can only be beneficial to consumer in the long run.
 Nathan Grayson, French Court Says Valve Must Allow Steam Users to Resell Games, Kotaku (Sept. 19, 2019), https://kotaku.com/french-court-says-valve-must-allow-steam-users-to-resel-1838259529.
 See Wes Fenlon, Steam now has 90 million monthly users, PCGamer (Jan. 14, 2019), https://www.pcgamer.com/steam-now-has-90-million-monthly-users/ (explaining that Steam is so big that it is constantly breaking records set by itself for both total and concurrent users).
 Grayson, supra note 1.
 Jon Fingas, Valve Loses Appeal Over Steam Refund Policy in Australia, Engadget (Dec. 28, 2017), https://www.engadget.com/2017/12/28/valve-loses-australia-appeal-over-its-old-steam-refund-policy/.
 See Cody Gravelle, Epic Games Store Doesn’t Want to be a Steam Clone, ScreenRant (Apr. 12, 2019), https://screenrant.com/epic-games-store-steam-differences/ (showing that prospective users of the recent Steam competitor the Epic Games Store ask the Epic CEO when analogs to Steam features will be coming to the Epic Games Store, and that the Epic CEO confirmed several of Steam’s features will be coming to the Epic Games Store).
 See Shamus Young, The New Challenger to Steam, Escapist (Oct. 23, 2018), https://www.escapistmagazine.com/v2/2018/10/23/the-new-challenger-to-steam (claiming Steam is at worst a monopoly and at best a hegemony); Cliff Edwards, Valve Lines Up Console Partners in Challenge to Microsoft, Sony, Bloomberg (Nov. 4, 2013), https://www.bloomberg.com/news/articles/2013-11-04/valve-lines-up-console-partners-in-challenge-to-microsoft-sony (stating that Steam controlled 75% of the dematerialized game market in 2013).
 Conviction of Steam; UFC-Que Choisir has the right to resell video games, Que Choisir (Sept. 19, 2019), https://www.quechoisir.org/action-ufc-que-choisir-condamnation-de-steam-l-ufc-que-choisir-fait-reconnaitre-le-droit-de-revente-de-jeux-video-n70803/.
 See Jonathan Shieber, Video game revenue tops $43 billion in 2018, an 18% jump from 2017 (Jan. 22, 2019), https://techcrunch.com/2019/01/22/video-game-revenue-tops-43-billion-in-2018-an-18-jump-from-2017/.
 See Nathan Grayson, French Court Says Valve Must Allow Steam Users to Resell Games, Kotaku (Sept. 19, 2019), https://kotaku.com/french-court-says-valve-must-allow-steam-users-to-resel-1838259529.
 See Matthew Gault, Why Are Gamers Mad About a Real Competitor to Steam?, Motherboard: Tech by Vice (Feb. 8, 2019), https://www.vice.com/en_us/article/nexeyx/why-are-gamers-mad-about-a-real-competitor-to-steam (stating that Steams seasonal sales and popular exclusives helped to turn the platform into a sort of hobby in the eyes of gamers).
 See U.S. v. Aluminum Co. of America, 148 F.2d 416, 427 (1945) (explaining that even monopolists who do not wield their monopoly power in an anticompetitive way can retard development of a market by not allowing competition).
 See generally Phillip E. Areeda et al., Antitrust Law ¶ 403b, at 8 & n.2 (3d ed. 2007); Richard A. Posner, Antitrust Law 932 (2d ed. 2001) (showing that monopoly power lowers output and increases prices, and that prices can be lowered by increasing output).