Quote of the Day – The Trolling Loophole

We rejected Active Shooter because it was a troll, designed to do nothing but generate outrage and cause conflict through its existence…

-Doug Lombardi, Interview with Ars Technica

Earlier in the week we saw the blog post from Steam announcing its new “anything goes” policy towards what sort of games will be allowed on the service.  I wrote about that myself and linked out to just about everybody else who did as well.

For me the most outrageous aspect of the whole thing was probably Steam’s line on whether allowing a game on their service constituted an endorsement of that game and its content and, whether you can take seriously their personal rejection of a controversial or offensive game while they also take a cut of the sales price.  There is, at best, a conflict of interest there and, at worst, a transparent and hypocritical attempt to protect their reputation from the consequences of their choices.  Because, in the end, Steam makes those choices and profits from them.

The only thing things that would keep a game of Steam with this new policy would be actual illegality or “straight up trolling.”

Determining what is legal is a minefield in and of itself given the number of jurisdictions Steam serves.  And we have already seen discreet jurisdictions that believe their laws apply to the whole world.  So at the end of my last post on the topic I wondered if this alone might cause Steam’s policy to remain effectively unchanged.

What I tended to discount was the concept of “straight up trolling.”  After all, what is trolling?  It seems to mean different things to different people.  How far does somebody have to go to be a troll.  I see people get called trolls for seemingly innocuous things or for even just disagreeing with people.  So where would Valve stand on trolling?  What does the word mean to them?

Well, we got some insight into that in the article linked at the top.  The game Active Shooter won’t be making it onto Steam because it falls into the troll category.  Is this Steam’s out?  Will they be able to vote their conscience by declaring things they don’t like as trolls?  Will anything controversial end up tagged as such?

I suspect Valve is going to be pressed as to what constitutes a troll.  There are some hints in that article, but nothing like a firm line drawn to separate the trolls from the flock.  I mean, if you’re going to make “zero effort cash grab” a measure, I’m going to point at some titles already on the store and ask how they’re still allowed.

I also strongly suspect that Valve will never want to, or perhaps even be able to, make a definitive set of rules as to what makes the cut and what does not.  In part, that is due to how humans behave.  The moment you draw a line somebody will step right up to it just to test you.  This is why EULAs and Terms of Service documents for online games always give the game companies an out, a free hand to punish or ban people for circumstances unforeseen, and why the rules of conduct are almost always annoyingly vague.

Which brings me back to their blog post earlier in the week.  Why bother sapping their credibility with claims that they’ll let games on their service that they’ll hate as much as some of their players if, in the end, they’re as like as not still going to refuse the same games after the policy change as they did before?

3 thoughts on “Quote of the Day – The Trolling Loophole

  1. anypo8

    “Why bother sapping their credibility with claims that they’ll let games on their service that they’ll hate as much as some of their players if, in the end, they’re as like as not still going to refuse the same games after the policy change as they did before?”

    I am not a lawyer, but I strongly suspect that this is all a legal maneuver. Valve is trying to ease into the US “common carrier” mode where their liability is limited. A key aspect of doing this is not actively auditing content: if you audit it, you are legally responsible for the consequences of choosing whether or not to distribute it. It’s kind of a stupid aspect of US law IMHO, but then again it’s a legal attempt to deal with a really difficult space in a way that balances the need to keep communication/distribution channels from being sued out of business against a need for there to be legal consequences for bad actors.

    Note that for this to work in court, Valve has to at least pretend that this policy isn’t just a legal maneuver: that they really are committed to not auditing. They can’t just come out and say “We don’t want to be liable, so for legal reasons we pretend not to audit stuff even though we actually pretty much do.”


  2. Wilhelm Arcturus Post author

    @anypo8 – I thought about that, whether or not this was some attempt to get included under CDA 230 or some such, but rejected the idea as too big of a stretch.

    To get there you have to convince a court that Steam does so little checking of what goes on their site that they couldn’t reasonably be aware of what was actually being posted. Unfortunately, the “just trolling” loophole closes that idea, as does their past behavior, as does the behavior of most comparable services (GoG, Origin, Microsoft Store, Apple App Store).

    In the mean time, they would also have to let stuff get onto their service that was crappy/controversial/defective enough to prove that this was their actual policy, which itself carries with it a not insubstantial risk.

    And, in the end, should they manage that, I have a hard time seeing the upside.

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