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
“. 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.