Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/50

 would apply to sales but not to contracts involving provision of a licence. Or a person would be prohibited from selling or even "offering for supply" any goods which do not comply with a safety standard (ss 106, 194) but not from actually providing those goods by licence.

154 Valve pointed to the verification element involved in its provision of computer software to a consumer. It submitted that the digital bits in the computer software provided to a consumer are not playable without authentication from Valve because they are not executable until communication occurs with Valve's servers in Washington State. It also submitted that when the consumer's licence was terminated the consumer could no longer play any game.

155 Again, this submission ignores the possibility of playing games offline, at least until the consumer goes online and the licence terminates. But, in any event, the verification requirement that Valve imposes upon consumers who wish to play Steam games when they connect to the internet does not prevent the computer software from being "supplied". Almost every imaginable hire or licence of a good is conditional upon some event. A person who enters a licence agreement to hire a car agrees to comply with many conditions. And the hire of a car by licence does not cease to be a supply of goods if the hire company has a right to terminate the licence upon any event such as failure to pay the hire fee or mistreatment of the car.

156 I do not accept the ACCC's primary submission that everything that was supplied by Valve under the SSA was a supply of a good. As I have explained, some matters provided were not goods. For instance, the non-executable data which accompanied, and was incidental to, the computer software was not a good although it is hard to see how it could be decoupled from the computer software. It may also be that Valve provided a number of services which did not involve the provision of any "thing" which could fall within the definition of a good. On the evidence before the Court, it is difficult to assess whether the extent to which, if at all, any of the non-game matters provided by Steam involved the provision of a service rather than computer software. For instance, Steam Guard (security protection for a customer's account) or Steam Play (a feature that allows customers to play games on different platforms) or Steams Videos (which allows subscribers to watch videos) might all require software to be operational.

157 Although not everything Valve supplied was a good, the important point for the purposes of this case is that at the core of Steam's supply to its subscribers was the provision of games. And at the heart of the provision of games was the supply of computer software. It is