The chicanery of Penguin Cretins

What does shonky physics platformer Penguin Cretins tell us about consumer rights, developer accountability, and Steam's responsibility to its users?

Developed by HFM Games, Penguin Cretins first appeared on Steam Early Access in March last year. It falls squarely into the category of hastily made, disposable, and cheap Steam games; an unremarkable product in almost every sense, except for how it first arrived on the Steam store.

Aiball was another Early Access title from HFM Games, and released on Steam in June 2016. A strange mix of Gang Beasts and five-a-side football, it received some favourable user reviews as a fun party game, but was left to languish in Early Access for several years before being replaced wholesale by Penguin Cretins.

HFM Games swapped out the code and rewrote the store page -- up until last weekend, the only evidence Aiball ever existed was one section where it still read "Buy Aiball" and several confused user reviews. It's been more than a year since HFM pulled this switcheroo and, after continued pressure from the Steam community, the developer reverted Penguin Cretins back to Aiball on June 13. However, this decision came without a real explanation from Steam or HFM.

"The change of name of the game was due to a change of character, which was also based on physics," said HFM in its response. "This is an early version of the game that is changing during development. But, as we see, people who bought Aiball do not need any penguins, so we are returning the old name and version of the game."

While HFM has abruptly backpedalled, it's not the only developer on Steam to have pulled such a baffling stunt. Steam user Mellow_Online1 offers a few other examples in a recent community post on the matter: Tale of Fortune began life as a voxel-style pirate adventure only to be code-swapped for an adults-only hentai game; online battle royale shooter Epic Royal was previously an open world survival game called Integrity; and retro arcade game Back to the 80s morphed from a side-scrolling shooter titled Cthulhu.

Shortly before the Penguin Cretins page was reverted back to Aiball, a member of the Steam user group Sentinels of the Store -- a sort of vigilante watchdog group which seeks to expose anti-consumer practices across the platform -- contacted support services, asking how and why HFM Games was allowed to simply swap one game for another.

"Please keep in mind that the game is listed as an Early Access game," reads the response from Steam Support. "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."

While the Penguin Cretins chapter is now closed, the whole fiasco has shed light on an underlying issue of accountability on Steam. The right of developers to make changes to their games without notice -- especially in Early Access -- is an important one, but should this right extend to developers who wish to entirely replace one game with another, and does it even adhere to the Steam End User License Agreement?

"If this kind of activity were allowed to stand -- and certainly if it were allowed to percolate upwards towards AAA -- I think you would see mass reduction in digital storefront spending"

Richard Hoeg, Hoeg Law

"Now, no one expects a company to simply swap out a game with another game, so what we get into is a discussion outside the letter of that contract," says Richard Hoeg, business attorney and founder of Hoeg Law. "Every license -- and indeed every contract -- is made with certain implied covenants.

"Most importantly for this purpose is the implied promise of 'good faith' and 'fair dealing.' That both sides are trying to honestly state their intentions, and that where one side has discretion it won't use it to completely obliterate the meaning of the contract in the first place. I would argue that in this scenario, you have a significant issue with good faith and fair dealing, and so HFM is likely committing contractual breach."

But opening this issue up to the debatable ideas of "good faith" and "fair dealing" leaves us in a situation where a developer like HFM can simply swap out one title for another and there appears to be no recourse built into Steam, potentially undermining consumer confidence in the platform.

"Without some ability to prevent these acts -- either by the letter of the contract, or the more 'equitable' concepts of 'good faith' and 'fair dealing' -- [Steam] would be concerned about consumers losing faith in their platform, and with any concentrated loss of faith a potentially catastrophic impact on their revenue," says Hoeg. "If this kind of activity were allowed to stand -- and certainly if it were allowed to percolate upwards towards AAA -- I think you would see mass reduction in digital storefront spending."

Of course, much of this stems from how the notion of ownership is wildly different within a digital context than a traditional physical one; consumers don't really own their Steam games, but have instead purchased access to them. For the most part, this arrangement doesn't cause too much friction between the platform, developers, publishers, and consumers.

However, with an incident like this, it demonstrates how few rights consumers have on Steam, and over goods they purchase. This is further complicated by the innate obfuscation of consumer rights that comes with jargon-heavy EULAs that are, for the most, not easily understood by your average consumer.

"As a corporate lawyer, at some level I am sympathetic to businesses needing a certain amount of control over their product/service lines, but the best way to have a discussion about whether or not they go too far is for more people to know about them," Hoeg continues.

"What might be acceptable to you or me, might not be acceptable to Donna or Joe, or, of course, the reverse. The issue is that we can't even have the conversation about what these licenses do if people don't know about them. And because of the way legal language works, very often someone is needed to help break that down.

"I personally think many of the controls on Steam are acceptable while others are too ambiguous for comfort, but in continuing to use the platform, I've clearly determined that, for myself, the benefits outweigh the risks. I can't be sure that others would make the same calculation, and that's an issue."

In its response to the Sentinels of the Store, Steam Support offers HFM a free pass given that the game was an Early Access title. While such games often undergo substantial changes during the open development process, the rise of live service games has demonstrated that few games are ever really "finished." Developers of live service games frequently face criticism from the community as new changes are met with a collective groan.

"As long as Steam et al are acting with what could be plausibly described as a 'good faith' interpretation of their contract rights... they have a lot of wiggle room"

Richard Hoeg, Hoeg Law

Examples of this can be seen with the Street Fighter 5 patch in 2018 that was so widely reviled, fans initially thought it was an April Fool's joke as Capcom buffed some of the strongest characters while nerfing the weaker ones. Ubisoft faced similar criticism in its 2.3.1 patch update for Rainbow Six: Siege, which began causing console crashes, introduced new unbalanced characters, plus a whole slate of bugs and exploits. Despite owning these games, consumers have essentially no control over what changes developers make post-launch.

"I don't think the issue is limited to early access at all," says Hoeg. "The world of games-as-a-service has been and will continue to deal with these issues into the foreseeable future. Only recently, we saw Doom Eternal tried to add potentially problematic anti-cheat functionality, and Bungie just announced they will be putting certain things that their users presently have access to into a 'vault' due to high maintenance costs -- and low use percentages.

"Now, both of those changes can be argued to 'enhance' the game experience for at least some, but probably not for all, and so we will always be discussing whether a game company goes too far with 'altering/removing' functionality. Now, for me personally, I see the value in allowing for those updates, but am also sympathetic to those saying we are losing the ability to archive our shared gaming history and/or who just want 'vanilla' versions back. It's a difficult question, but it's not going away."

It's easy to see the Steam EULA as a cynical attempt to push responsibility away from Valve and onto the consumer or developer, but Hoeg says it's no different from traditional retail.

"Steam -- and most other terms of service -- effectively tries to disclaim all liability, and makes no promises as to any feature or function of the platform itself or the game licenses you purchase on that platform. Now, whether those would hold in the face of truly bad acts -- things like outright fraud -- is an open question. In general, they wouldn't. But as long as Steam et al are acting with what could be plausibly described as a 'good faith' interpretation of their contract rights, at least in the US they have a lot of wiggle room."

And that's what it ultimately comes down: wiggle room. Again, the debatable ideas of "good faith" and "fair dealing" helps create leverage, which platforms can use to wiggle out from beneath the weight of accountability. In Hoeg's view, however, HFM was not operating in good faith when it swapped Aiball with Penguin Cretins. Despite this, the developer has not been reprimanded, and still operates freely on Steam.

With the Aiball store page restored, and Penguin Cretins disappearing into the ether for now, this particular incident is wrapped up in a neat little bow. However, Valve's inaction on the matter -- not mentioning the stony wall of silence it deploys when faced with scrutiny -- demonstrates a lack of concern for its users' rights providing exploitation falls within the letter of the law, rather than the spirit of it.