When it comes to software, should consumers be entitled to the same protections they receive when purchasing physical products?

If two European Commission Commissioners have their way, consumers will.

Commissioners Viviane Reding and Meglena Kuneva are proposing that EU consumer protections applying to physical products be extended to cover software products. Circulated text associated with the proposal states:

Licensing should guarantee consumers the same basic rights as when they purchase a good: the right to get a product that works with fair commercial conditions.

According to Kuneva, "If we want consumers to shop around and exploit the potential of digital communications, then we need to give them confidence that their rights are guaranteed". Not surprisingly, however, software makers aren't thrilled about this prospect.

Francisco Mingorance of the Business Software Alliance told ZDNet UK that "Digital content is not a tangible good and should not be subject to the same liability rules as toasters". He said that software makers cannot guarantee the "anticipated uses" and "potential performance" of their products. He also noted that the proposal would likely limit consumer choice as license terms would need to be extended to two years to meet the guarantee period.

So who is right? It's a tricky subject. I'm of the opinion that there is a lot of flawed (if not downright crappy) software floating around out there. Software makers should be forced to take responsibility when they sell software that they know has significant problems and is likely to muck up computers.

At the same time, there are plenty of differences between software and tangible goods. Holding software makers to the same standards as a toaster manufacturer probably doesn't make sense and there are a lot of things software makers legitimately can't control when it comes to how their products operate. Making software makers liable for aspects of product use that they can't control would be a disaster; consumers may even end up paying more for software as software companies boost prices to cover the guarantees they have to make and the potential liabilities they have to shoulder.

Thus, it seems to me that the proposed solution of treating software like a tangible product is about as sensible as trying to fit a square peg into a round hole. By all means the European Commission should look at developing more robust measures for protecting consumers when it comes to software products but proposals should be designed reasonably to match the characteristics of software, not physical goods.

Photo credit: Stuart Chalmers via Flickr.

Patricio Robles

Published 11 May, 2009 by Patricio Robles

Patricio Robles is a tech reporter at Econsultancy. Follow him on Twitter.

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Comments (2)


Deri Jones, CEO at SciVisum Ltd

Patricio - I think that moving to consumer protection for software is a good thing for consumers and therefore for the market.

As you say, it would be silly to make vendors responsible for things they can't control - but there are many they can control - take just one: compliance to standards.

Eg Document format standards; wouldn't it be great if all word-processed documents in all software had a common format, read and write in any software you like without problem.

And extend the law to SAS too -  - as we all start creating and saving our documents online with 3rd parties, and don't want to be locked into proprietary silos.

If consumer law law said that vendors had to provably meet any claims to standards in their software -  that would be an easy, bite sized thing to do.

It's topical now too - just recently Microsoft are in the news, over their compliance (or otherwise) to  the ISO standard Open Documents Format ODF. Which is a major step forward in us all having a common format for all our office type documents.

Microsoft claim compliance, but tests seem to show that they are actively making Office 2007 less compatible to what everyone else is doing with ODF - so that their product can't inter-operate with ODF docs produced by other products. (As Microsoft have other products that interoperate with ODF better, the argument is that they have actively chosen to NOT use the same code modules, but rewrite new ones, that are worse...).

Microsoft are using the justification that 'not everything is defined in the standard' - so that for example because 1.1 of the standard doesnt mandate how  spreadsheet formulas should be laid out... Office 2007 in ODF documents just replaces all formulas with fixed values. Ouch.

Inter-operability is the whole raison d'etre of having standards, so it is strange logic to say that on the edges where the standards don't say what to do, that you should ignore common practise out in the market, and end up less compatible.

Microsoft have their cash-cow Office to lose, if all software really did by law have to work with the standards they caim to work to... so this issue won't go away with a fight!

A great resource for the legal issues in the software world, and the history of court cases in Europe where Microsoft has now been fined over 1 billion Euros (yes billion), see Groklaw;


PS when I think of the millions of man-hours wasted worldwide by web designers struggling with the non-standards problem of web browsers (not mentioning any names IE6 !)... I know that it would save me lots of time as a web performance tester if all browsers had by law to follow the published standards... I can dream!

about 9 years ago



The problem with holding software to the same protection standards as an appliance is that the cost of software will rise dramatically and innovation will be throttled. Imagine the 1930s for automobiles if the protection standards for automobiles was the same as that for trains - auto companies would have stopped building them or priced them high to cover costs of testing. That being said, the notion of standards makes sense - html being one great example.

almost 9 years ago

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