There are many opinions on how Valve’s Steam Deck may benefit game developers, especially indie developers, but when we heard the announcement we were mostly concerned with one thing: how will Steam Deck affect publishing agreements moving forward?

What is Steam Deck?

Valve recently announced a new gaming handheld device called the Steam Deck that will be shipping out in December 2021.

Valve is a video game developer, publisher and the primary force behind the digital distribution platform called Steam. 

There are over 30,000 games on Steam as of 2019 meaning that unlike consoles like Sony’s PS5 and Nintendo’s Switch that have to secure launch titles, the Steam Deck will automatically be launching with tens of thousands of games for people to play on the device.

Valve tried this previously about six years ago with their Steam Machine but there is thinking the Steam Deck may persist this time where the Steam Machine did not.

How does Steam Deck work?

Steam Deck will be running on SteamOS that will purportedly be optimized for the device’s smaller form. The OS itself will be running on Linux and using Proton, a piece of software developed by Valve, in order to enable games developed for Windows to run without developers needing to port them over.

It’s being considered another hybrid video game console, like the Nintendo Switch, that can be plugged into an external display like a TV. However, the Steam Deck will essentially be its own fully capable Linux computer and users will be able to plug devices into it like a mouse, a keyboard, a monitor and even run other game stores on it. 

So how might this affect publishing agreements?

Mostly, this raises more questions. I posed one of those questions recently on Twitter:

If a publishing agreement covers PC but doesn’t specify channels, is the #SteamDeck included or excluded?

This rabbit hole is not new though. Lawyers live in these corner cases. Z from Serenity Forge responded:

Is Mac covered if the agreement covers PC but doesn’t specify? What about Linux? What about Linux but as a custom-built laptop? What about a Linux but as a carpel tunnel version of the Switch?

This logic is right. Contracts and agreements are rarely perfect. Lawyers and developers should work to define carefully what they mean to avoid ambiguity. If a publishing agreement is meant to cover distribution on Windows-based PCs, it should say that. Carefully.

But, sometimes the world pulls the rug out from under a contract provision. New platforms, distribution methods, and even new consoles can disrupt and add ambiguity to an otherwise perfectly good agreement.

Something similar happens when an OS expands beyond its original borders. Android is built on a Linux kernel (or so I am told). The Steam Deck is built on Linux using Proton, as mentioned above. So, does that make it a separate mobile platform? Pretty much everyone agrees that Android devices are “mobile” when it comes to a PC-Mobile distinction. Except Chromebooks, right? Maybe. Maybe not. How does the fact that the agreement with Valve is going to cover distribution on Steam (both on PC and Steam Deck) play in?

This is not (yet) the same level shift for publishing agreements that the introduction of streaming was predicted to be. For now, anyway, it seems the consensus is that this will get lumped in with other Steam distribution (therefore: PC) but I can definitely see sentiment shifting as the Steam Deck picks up market share.

One solution adopted in some longer form agreements is to specify channels of distribution specifically, rather than tying distribution to hardware. Reframing the thinking of a “platform” from hardware to a distribution channel means that rights are siloed by Steam, PlayStation Store, etc. This also solves a console issue: backwards compatibility (how can a developer commercialize PS5 effectively if the holder of its PS4 rights is marketing the same game at the same time playable on both consoles – from a consumer perspective maybe they shouldn’t). 

Of course, the publisher can solve this same issue (from one side of the transaction) by just taking ALL the distribution rights.

Brandon J. Huffman

Brandon is the founder of Odin Law and Media. His law practice focuses on transactions and video games, digital media, entertainment and internet related issues. He serves as general counsel to the International Game Developers Association and is an active member of many bar associations and community organizations. He can be reached at brandon at odin law dot com.