One of the big questions a lot of gamers have when developers repeatedly see their games getting banned from Steam is “why not abandon Steam altogether and release the game on other adult game storefronts?” Most developers avoid responding to the question or simply ignore, prepping to release their next game on Steam in hopes of it not getting banned. However, since Dharker Studios’ upcoming project, My Senpai, has been crowdfunded through Kickstarter, the developer had to answer questions from backers, many of which were centered around why the studio was sticking with releasing their games on Steam even though their previous title, My Girlfriend, was banned from Steam.
In a post made on March 14th, 2019, Dharker Studios had a lengthy Kickstarter comment that explained why Steam is the most viable option for selling the visual novel, and why other storefronts haven’t been pursued, why they’re avoiding what Valve deems “legally grey” content, writing…
“Valve are doing what they have to, to protect themselves from legal action, the truth is setting an adult hentai game in a college with school uniforms is a grey area. They have decided they dont want to risk the legal issues of releasing such a game, it is a fairly reasonable position to take, if it were your business and livlihood you might do the same, indeed I will do the same moving forward removing such content and settings from my future games.
“As for distributing it elsewhere instead of Steam, I technically could, but here is the problem, this game cost around £40,000 to produce, Kickstarter raised roughly £15,000 (less if we remove the cost of physical rewards and shipping) leaving a loss to produce of £25,000. Simply put all over platforms sell at most 1000-2000 units over a 3 month period from release. Less beyond that after fees and taxes we would be lucky to break even. The point is we require steam to reach a broader larger audience to make a profit. Thus I have to take that into account.
“Also most of those smaller companies don’t have automatic sales figures online, as such I wont use them, the only platforms I would be willing to sell it on are: Itch.io, Nutaku and Humble Store (humble store isnt an option as its a key reseller mainly) and the other two are far too small time to sell on their own. To make a profit which as a business I need to do, I have to adjust the game and sell it on steam.
“I dont want to sell multiple versions of the same game, which is why I am not selling My Girlfriend as it is on Nutaku and then an alternate version of that game on Steam under a different name. I feel it would be best to simply have a single version of the game under a single name out there on all platforms.”
While it’s a salient point about Steam’s market reach making it viable for developers to able to make back a development budget and profit from the platform, there are a couple of corrections that need to be made here.
1.) There is nothing “legally grey” about a college or school setting. There are no laws that prohibit settings from being used in fictional material. These settings appear multiple times in live-action porn as roleplay and in animes and hentai provided by U.S., distributors all the time, including but not limited to Anime 18, Central Park Media, Critical Mass, NuTech Digital, and Kitty Media to name a few. If colleges were “legally grey” areas then Pornhub would have been shut down by now.
2.) Valve has released multiple games both in the past and recently set in schools (high school to be specific) involving adult content. They obviously have no problems with school settings and adult material when it’s themed around certain kinds of sexual content. For instance, A Hand In The Darkness involves underage homosexual intercourse between high school boys, and that game is allowed on Steam just fine, even though majority of the sex consists of rape. They also allowed Sweet Pool on Steam, even though it also features sex between school boys in homosexual relationships. And Dirty Education just came out in February and it released uncensored and uncut on Steam, featuring hardcore gay sex between furries.
3.) Valve has no issues whatsoever allowing the wallpapers, soundtrack, and the lewd dakimakuras from My Girlfriend onto the Steam store. So sexually suggestive imagery of the characters from the visual novel were not a problem for Valve, just the entire visual novel itself. It also contradicts the notion that the characters were in a “legally grey” area when Valve obviously has no problems selling paraphernalia on the Steam store featuring those exact same characters in lewd poses.
4.) There is nothing illegal or “legally grey” about an all-ages version of a game that has no sexually explicit content!
So just to be clear, there is no “legally grey” area involving school settings. In fact, there is nothing in any laws relating to school settings and adult content. This is completely made up by Valve.
There are, however, obscenity laws where any kind of adult content could be classified as illegal, and some of the laws can be considered grey when it comes to topics like lolis and shotas, as outlined in the 2003 Federal Protection Act, wherein the text states under section 502…
“Prohibits: (1) making a visual depiction that is a digital image, computer image, or computer-generated image of, or that is indistinguishable from an image of, a minor engaging in specified sexually explicit conduct; (2) knowingly advertising, promoting, presenting, distributing, or soliciting through the mails or in commerce, including by computer, any material that is or contains an obscene visual depiction of a minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in such conduct; (3) knowingly distributing, offering, sending, or providing to a minor any such visual depiction using the mails or commerce, including by computer, for purposes of inducing or persuading a minor to participate in an illegal act; and (4) knowingly producing, distributing, receiving, or possessing with intent to distribute a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that, under specified circumstances, depicts a minor engaging in sexually explicit conduct and is obscene, or depicts an image that is or appears to be of a minor engaging in such conduct and such depiction lacks serious literary, artistic, political, or scientific value.”
The bold is highlighted for emphasis.
Note that there are caveats and conditions on what determines a work to be considered obscene and what classifies it as illegal, even when accounting for lolicon and shotacon material. As mentioned many other times before, and as addressed in an editorial by Lewdgamer, unless it’s hardcore lolicon material, it’s highly unlikely to catch anyone’s attention.
However, all of that applies to explicit adult material, for which My Girlfriend and My Senpai were not the R18+ versions being submitted to Steam and did not contain hardcore lolicon material.
Therefore, unless there were characters who were explicitly mentioned to be under the age of 18, were explicitly categorized as minors within the story, and were engaged in hardcore explicit material to which it could unequivocally be categorized as “obscene”, then there is no “legally grey”issues, especially when Valve has shown that they have no qualms about allowing other visual novels on Steam set in high schools featuring hardcore sex.
Nevertheless, most developers aren’t going to challenge Valve on this point, because the last developer who did so, Dank Boi Games, was permanently banned from Steam. He pointed out that Valve allowed Lady Killer In A Bind to release on Steam uncensored featuring school-aged characters, complete with a rape scene, but banned other games that were far less innocuous.
Now to be fair, Valve did ban one yaoi visual novel featuring underage characters called Boys’ Love. It was removed on February 24th, 2019, according to the SteamDB entry after it released back on September 28th, 2018. Why was it removed? We don’t know. But it could be that Valve was actually applying bans fairly for once and removed a game featuring underage characters involved in a sexually romantic relationship.
In the case of Dharker Studios, however, they have noted that they will simply avoid school settings altogether, even for visual novels set in college.
Their upcoming My Senpai has been completely rewritten to avoid any mention of being set in a school, and they’re hoping that the game releases on Steam without any problems to avoid making it on the Waifu Holocaust 2.0 banned list.
(Thanks for the news tip npcomplete)