In AU, Court Rules Downloaded Software Is Not "Goods" 81
bennyboy64 writes "A court decision ruling that the supply of software through a digital download mechanism is not a supply of 'goods' has been upheld in the Supreme Court of New South Wales in Australia, setting a precedent that software downloaded via the Internet is not protected by the Sale of Goods Act, reports ZDNet. It's a court decision that lawyer Patrick Gunning said attorneys had been waiting to have clarified for some time. What this meant was that 'people who purchase software will have more legal rights if they buy over the counter rather than downloading,' Gunning said."
Their Definition of Goods (Score:2, Informative)
"Goods" include all chattels personal other than things in action and money. The term includes emblements and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.
Acquired from the definitions page of the Sales of Goods Act 1923 [austlii.edu.au].
Services for consumers? (Score:5, Informative)
It's not a good, it's a service. Like a song played over the radio isn't a good, it's a service, while a song bought on a CD is a good. The judge recognized that his ruling could lead to injustice, and called on parliament to change the law to reflect the changes in the definition of 'goods' that the digital revolution has brought about.
Re:So if I purchase and THEN download... (Score:3, Informative)
Read The Fucking Article.
The judge recognised in the case that what had been ruled could lead to an injustice, especially with the way technology had changed since the Sale of Goods Act was made law. "The judge said that if there was any injustice, it was up to parliament to change the law and not for the court," Gunning said.
He knows that. He's said it's wrong. That's just not the way the law was written. The article even says that there is draft legislation to address this.
Re:Then the companies should not get copyright. (Score:2, Informative)
A copyright is a legal device that gives the creator of a literary, artistic, musical, or other creative work the sole right to publish and sell that work. Copyright owners have the right to control the reproduction of their work, including the right to receive payment for that reproduction. An author may grant or sell those rights to others, including publishers or recording companies. Violation of a copyright is called infringement.
From here [thefreedictionary.com].
The information on given bytes are the work of the creator and it has rights to it, regardless of it reproduced through the sale of a good or the providing of a service.
Re:Why would anyone live in Australia? (Score:3, Informative)
Having lived in both places I totally agree with him
Eh - only the New England area of the US was puritans. Most of the South was just greedy plantation owners, and Georgia was originally a penal colony just like Australia.
Re:You are correct (Score:2, Informative)
The reasons you don't pay taxes with Valve is the same reason you don't pay taxes with Amazon. Sales tax is a state level tax, and large national and international companies don't want to have to deal with the ever changing tax laws covering your region. The expectation is that since you aren't paying at time of sale that you will pay when you file your state income tax at the end of the year. I realize that most people don't add the sales tax for Amazon purchases when they do their taxes, but legally you are suppose to.
Re:Makes perfect sense (Score:3, Informative)
Software still needs to be transferred from the physical medium, it doesn't magically appear on your hard drive.
The fact remains that when you purchase software for delivery over a telecommunications service the software is not purchased in combination with any physical medium. The seller may have the software stored on some medium, but they are not selling that medium to you. The medium on which you install the software is something you already possessed. You take delivery only of the information itself, and not any physical goods.
And FYI the physical medium is irrelevant to the software, it is used strictly as a means of conveyance.
Sure, but the fact is that you did buy the physical medium, and thus can make certain claims regarding its nature as a good which would not apply to the information content alone. Those claims shouldn't extend to the operation of the software—only the media itself is a good.
To illustrate, let's say you bought a do-it-yourself instruction book. Let's further say that you could win a suit against the retailer or publisher over physical defects in the book. That's all fine; but should you win a similar suit over defects in the instructions themselves? I would say no. The book itself is a good; the instructions within the book are not. Software is much like these instructions, whereas the physical delivery medium is analogous to the book.
The phrase "over the counter" was perhaps somewhat unfortunate; as I understand the ruling, you could buy software online with the same legal protections, provided it was delivered to you on a physical medium and not simply downloaded.