Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/61

 198 In this ordinary sense of carrying on a business, Valve undoubtedly carried on a business in Australia for six reasons.

199 First, as I have explained, Valve had, and has, many customers in Australia with approximately 2.2 million Australian accounts. It earned significant revenue from Australian customers on an ongoing basis.

200 Secondly, Steam content is "deposited" on Valve's three servers in Australia when requested by a subscriber. It will stay on the server if it is requested again in a particular period of time.

201 Thirdly, Valve has significant personal property and servers located in Australia which, at the time of acquisition, had a retail value of $1.2 million. Its Australian servers were initially configured by an employee who travelled to Australia (ts 122). They were updated in 2013 by another employee who visited Australia. Valve paid invoices including, in one case $436,389, to an Australian company (Equinix) into its Australian bank account for equipment involving servers (Court Book pp 676–677).

202 Fourthly, Valve incurs tens of thousands of dollars per month of expenses in Australia for the rack space, and power to its servers. Those expenses are paid by Valve to the Australian bank account of an Australian company (Equinix).

203 Fifthly, Valve relies on relationships with third party members of content delivery providers in Australia (such as Internode or ixaustralia) who provide proxy caching for Valve in Australia.

204 Sixthly, Valve has entered into contracts with third party service providers, including companies such as Highwinds, who provide content around the world, including in Australia. Valve is aware that Highwinds has servers in Australia (ts 111) and that it is sometimes more efficient for customers in Australia to be provided content from servers in Australia (ts 112).

205 For these reasons, even if Valve did not engage in conduct in Australia, the Australian Consumer Law was engaged because it was an incorporated body which was carrying on business in Australia.

(4) Issue 4: Did the representations contravene s 18(1) or s 29(1)(m)?

206 The ACCC's statement of claim pleaded numerous separate representations across three different forums. Many of the representations pleaded were very similar. Many representations were pleaded where the representations formed part of the same course of