Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/47

 "Steam is a broadband platform for direct software delivery" (Court Book p 598), "Steam… [a]llows you to purchase and immediately download games via the internet" (Court Book p 598). Steam provides a "software product" (Court Book p 164), "[a]s with most software products…" (Court Book p 199).

141 Valve submitted that there was no supply of goods to any consumer because consumers require a non-assignable licence to access and use the video games and they must log on to Steam to verify their account and subscriptions to the game. Valve also submitted that the provision of any licence for the use of computer software is not the provision of computer software.

142 This submission omits relevant facts and, in any event, cannot be accepted. The facts omitted are that a consumer can play Steam video games without a connection to the internet, and without verification of his or her account or subscriptions. As I have explained, a consumer can choose "offline" mode in the Steam Client and can play any games in his or her library without any communication with Steam's servers. Communication would be needed if the games were to be updated or if the consumer wished to play against another player on the internet. But the significance of the "offline" mode is that it shows that the consumer has been provided with software which can be used without any further communication with Valve's servers. A particular example is the game "Legends of Dawn" which was purchased by Mr Miles, a witness who gave affidavit evidence for the ACCC, to play as a single player game, locally on his computers, without a requirement for access to a server.

143 Valve's submission essentially relies upon a distinction between a licence to use and a property right. Valve submitted that the Licence Agreement (which, by cll 1 and 3, confers only a non-exclusive licence to install copies of the program for personal use until termination) was not a property right. Similarly, Valve pointed to each version of the SSA (cl 2) which confers "a limited, terminable, non-exclusive license and right to use the Software…". Each version of the SSA, in the same clause, also provides that the software is licensed and not sold. Valve asserted that a mere licence could not be a "supply of goods".

144 It was not in dispute that the Licence Agreement when a consumer downloaded Steam Client and the SSA conferred a contractual licence upon consumers. A contractual licence was described by Dixon J as operating "as a bare permission to do what would otherwise by an invasion of the licensor's rights. If the permission is terminated, further continuance of the acts it authorized becomes wrongful": Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17;