38 Sydney L. Rev. 441 (2016)
What's in a Name: Software, Digital Products, and the Sale of Goods

handle is hein.journals/sydney38 and id is 449 raw text is: 

/hat's in a Name?

Software, Digital Products,

and the Sale of Goods

Benjamin Hayward*


     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, modem 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.

I      Introduction

For over 100 years, common law legal systems have applied special legal regimes
to the sale of goods. The Sale of Goods Act 1893 (UK) set the standard for the
common law world. In the United Kingdom ('UK'), the original 1893 Act is now
consolidated by the Sale of Goods Act 1979 (UK). It was also the basis for
derivative Sale of Goods Acts now in force in each of the Australian states and
territories - the Sale of Goods Act 1954 (ACT), the Sale of Goods Act 1923
(NSW), the Sale of Goods Act 1972 (NT), the Sale of Goods Act 1896 (Qld), the
Sale of Goods Act 1895 (SA), the Sale of Goods Act 1896 (Tas), the Goods Act
1958 (Vic) and the Sale of Goods Act 1895 (WA) - as well as New Zealand's
Sale of Goods Act 1908 (NZ). This UK, Australian and New Zealand ('NZ')
legislation applies alongside the common law in regulating sales of goods. The

   Lecturer, Deakin Law School, Deakin University, Geelong, Australia; Coach, Deakin Law School's
   Willem C Vis International Commercial Arbitration Moot and Vis (East) Moot teams. Any errors
   remain the author's own.

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