Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/46

 (2) the principal element of the supply is a good so that the substance of what Valve supplies should be characterised as a good; or

(3) Valve supplies a bundled service and good and the consumer guarantee of acceptable quality attaches to the good component which is the computer software for the game.

137 Valve supplied consumers with a good. The definition of "goods" was extended when the Australian Consumer Law was enacted on 1 January 2011 to include "computer software". This extension avoided debate about whether executable bits of digital data might fit with the idea of thinghood which would otherwise be an essential requirement for a "good". Prior to this extension, cases had recognised that computer software that was supplied on a physical medium such as a CD-Rom was a good but, perhaps controversially, that digitally downloaded computer software was not: compare Amlink Technologies Pty Ltd v Australian Trade Commission [2005] AATA 359; (2005) 86 ALD 370 with Gammasonics Institute for Medical Research Pty Ltd v Comrad Medical Systems Pty Ltd [2010] NSWSC 267.

138 Mr Dunkle's evidence, which I accept, was that computer software is instructions or programs that make hardware work. The video games provided by Steam required computer software to make them work. The material downloaded by consumers included nonexecutable data such as music and html images. Mr Dunkle's uncontested evidence on this point was that this non-executable data was not computer software. But he accepted that the computer software made that non-executable data work.

139 In other words, one of the most fundamental things that Valve provided to its customers, more than 4,000 games, contained an essential component of "computer software". The Steam Client used to access those games involves software. As Mr Dunkle said, the games consist of software and a number of other assets (eg music, images). Mr Dunkle also explained (ts 108) that the content in Steam's vital "content servers" is the software for the game.

140 The importance of the games and the computer software as part of Valve's supply to consumers is also vividly apparent from the SSA and its Refund Policies. Clause 1 of the 2013 SSA defines software as "Valve or third-party video games". In a frequently asked questions section of Valve's website, Valve describes the transaction as "Buying Games through Steam". One topic included is "How do I purchase games through Steam?" Valve's material is also replete with references to "games" and "software". Valve refers to "Buying Games through Steam" (Court Book p 345), "purchase [of] a game" (Court Book p 347),