What's in a Name? Software, Digital Products, and the Sale of Goods

Abstract

This article addresses how the advent of trade in computer software, and now digital products, has challenged the application of sales law and consumer law. It addresses the law of three jurisdictions: the United Kingdom (‘UK’), Australia and New Zealand. Often, applying the ‘goods’ criterion in these regimes will be uncontroversial. Nevertheless, modern market conditions have created a need to move beyond the existing question of whether software constitutes ‘goods’, and instead to ask how a range of different types of digital products fit into sales law and consumer law regimes. Many legal systems have settled the software-as-goods question. However, software is only one kind of commonly traded digital product. This article argues that other types of digital products — including apps, firmware, digital music and electronic books — should be treated the same way as software by sales law and consumer law regimes. Recent developments in UK consumer law are also analysed as an innovative model for reform regarding party rights and obligations in the supply of digital products.