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Microsoft's Game Content Usage Rules and Steam

Started by April 29, 2021 11:24 PM
5 comments, last by Evelyn Arcturus 3 years, 7 months ago

I'm currently looking to start a fan project in the Halo franchise, and it is my understanding that Microsoft have a pretty relaxed policy regarding fan content called the GCUR laid out here: https://www.xbox.com/en-us/developers/rules

In short the rules are you can't imply you own the copyright, can't rip assets to use (so everything must be self-made, even if it looks almost identical), and you can't make money. I'm more than happy to follow these rules, and I am pretty certain these do apply to entire games and not just mods/artwork/animation since there are a number of high-profile projects that haven't been shut down yet.

I'm looking to release it on Steam (free of course) since that would be the easiest way to distribute the game as well as introduce a multiplayer base, however I have not been able to read through legal documents yet, so figured I would ask first: does Valve have any rules against distributing content like this? Would I be allowed to distribute a fangame on Steam if I don't technically own the rights but have permission to use?

Fancy spacedust from a long dead star sitting on a ball of rock hurtling through space. Just like the rest of you.

This is a question which shouldn't be answered from guys on the internet but a lawyer. Legal documents, especially copyright stuff is very complicated and more than often treats courts for years and can cost several thousands of dollars

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It's a hard question to answer.

First, the key details I read are the words: “Microsoft grants you a personal, no-exclusive, non-sublicensable, transferrable, revocable, limited license … strictly for your personal, noncommercial (except as specifically provided below) use.” I've bolded four terms.

Personal use is mentioned twice. Distributing it on steam is not personal use. Commercial doesn't mean “can't make money”, although that's a frequent interpretation. Commercial use means something very broad, both direct and indirect use for any kind of commerce. Free stuff can absolutely be part of a commercial use. Even putting something up on your own website can qualify as commercial use. I have a difficult time seeing a project distributed on Steam ever being interpreted as personal use.

Also, it's not sub-licensable. The talk later in the license about that you cannot enter into an exclusive agreement with someone else to distribute your item, even if they don't pay you. They go into some nuanced details about what it means, and whether your agreement with Valve violates the sub-license terms would depend on details we don't have. It's not something I'd approach lightly.

Further, I note the license is revocable. They can tell you “no” specifically if they choose. If they decide they don't like your usage for any reason, they can terminate their license quickly and easily. Sometimes fan projects start out fine, but over time the brand team decides they want to shift the direction of the brand and it becomes too close to an existing fan project for corporate comfort. In that case they change their quiet silence into discussions and takedowns.

The next thing is that all these actions take time, effort, and/or money. Someone needs to notice it, and they need to talk with the legal department, and they need to send messages to another company, and they need to trigger a shutdown. The harsh reality is your project will probably die in obscurity before that happens.

The answer to can you do it, is probably yes, you can start down the path without too much worry from Microsoft. If you succeed at creating a fan project, you also probably can get it up on Steam and on your personal project web page.

A different question is if the project will ever be shut down. The license describes right at the top that is only good as long as the work remains in Microsoft's good graces. If it is tiny and they never notice, no issues. If it gets big then there may be issues from the company. The company may review it, decide they're okay with it, and leave it alone. I've worked on several projects where the dev team has quietly supported fan works, but officially we never grant any additional license. They also may review it, decide they're not okay with it, and take action. Even more, if your project becomes wildly successful, they have the option to change their mind at any time, one day it's a small project they ignore, the next day they consider it something requiring a commercial license. Valve also may be uncomfortable with it on review, and require you to show evidence of a proper license or take the site down.

The only way to be certain is to not use their stuff, create your own stuff, and work with lawyers to properly license anything that you didn't create. This is a creative industry, after all. If you create your own stuff you aren't beholden to their licenses, nor are you riding on their coattails but on your own merits. Create something new.

@frob Thank you for the information. After reading over the GCUR more carefully, I do agree that there were a lot more things I hadn't taken into account like the sub-licensing and distribution (though does it count as “exclusive” if there's nothing preventing me from distributing elsewhere?).

As for them revoking for whatever reason they choose, I knew this was a possibility but felt confident they wouldn't due to the number of other fan projects out there that are high-profile and never got shut down, though thinking twice about it I realise its not a good idea to put in all the effort of making a game when it could be taken down at a moment's notice without argument.

I appreciate the thoughts and info, after considering it I think I'm not going to go forward with this project.

Fancy spacedust from a long dead star sitting on a ball of rock hurtling through space. Just like the rest of you.

My 1st thought was that fan games can't be distributed on steam. At least to the best of my knowledge.

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@GeneralJist That seemed to be the case when I asked their support. The person responding said they weren't massively familiar with the GCUR but pointed out that even if I have the right to make the game doesn't necessarily mean I had the right to distribute it through third-parties… which of course Frob pointed out here.

Fancy spacedust from a long dead star sitting on a ball of rock hurtling through space. Just like the rest of you.

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