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In AU, Court Rules Downloaded Software Is Not "Goods"

Soulskill posted more than 4 years ago | from the unless-it's-pirated-right dept.

Australia 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."

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Good for consumers? (5, Funny)

Peach Rings (1782482) | more than 4 years ago | (#32131736)

I suppose that means that they can't be taxed as goods then?

Re:Good for consumers? (4, Insightful)

0100010001010011 (652467) | more than 4 years ago | (#32131796)

Or counted as theft.

That is covered by copyright law. (0)

Anonymous Coward | more than 4 years ago | (#32137318)

This is why copyright law exists, people have explicitly understood for quite a long time that copying specific expresion of ideas is not theft since no actual goods have changed hands.

Still good that the clarification is made though.

Re:Good for consumers? (3, Insightful)

Anonymous Coward | more than 4 years ago | (#32131874)

Does it extend to other purely-digital creations? WHAT ABOUT E-BOOKS? What about logo designs? What about digital photographs? Even if sold, are they no longer considered "goods" as well?

Services for consumers? (5, Informative)

spun (1352) | more than 4 years ago | (#32131912)

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:Services for consumers? (1)

GNUALMAFUERTE (697061) | more than 4 years ago | (#32132362)

Excellent then. Services aren't protected by copyright law.

Re:Services for consumers? (1)

spun (1352) | more than 4 years ago | (#32132400)

Is a television show a good? No. Is it covered by copyright law? Yes. Do you understand copyright law? Apparently not.

Not good? I agree! (4, Funny)

mangu (126918) | more than 4 years ago | (#32133382)

Like a song played over the radio isn't a good

I fully agree with that. Most songs played over the radio are no good at all.

You are correct (1)

Monkeedude1212 (1560403) | more than 4 years ago | (#32131916)

Before you all throw full bottles of beer at your computer screen, let me remind you of a post I made earlier today. About Valve and their steamworks software. Since they are not selling the goods, they are "Licensing" it out to you. This does mean you do not have certain rights to the product, but it also means you have certain other rights. For example, you won't have to pay Taxes. (and I've never paid taxes on any Steam Games).

So, yes, unless they are taxing you on some service, then you shouldn't be taxed at all. So make sure you read the fine print for some "Supplier services fee".

Re:You are correct (1)

OzPeter (195038) | more than 4 years ago | (#32132050)

So, yes, unless they are taxing you on some service, then you shouldn't be taxed at all. So make sure you read the fine print for some "Supplier services fee".

Australia has the GST - Goods and Services Tax which applies to anything you provide as a business - except for certain food stuffs, etc which exempt.

Re:You are correct (2, Interesting)

rtb61 (674572) | more than 4 years ago | (#32137296)

An interesting tax principle. The Australian GST is a federal value added tax http://en.wikipedia.org/wiki/Goods_and_Services_Tax_(Australia)#Economic_and_social_effects_of_the_GST [wikipedia.org] that was used to replace all state sales taxes and thus provide a simplified and uniform across the board taxation basis across all states and that even online sales within Australia now have to in affect pay sales tax. A substantive portion of GST tax income is the redistributed back to each state. This would certainly resolve a lot of internal internet sales problems within the US as well as simplifying cross state border transactions and smuggling.

Online game distribution are really unsafe, for example with Steam if you have a dispute over the payment for one game, they will lock you out of all your games regardless of the value difference (say the game in dispute is worth $10 and you have $1000 worth of games tied to them, tough that's just why extortion can work so well, the loss of being ripped off is far less than the penalty for not paying). This is of course what ultimately will always limit online game sales, corporations and their ass hat executives will simply not be able to resist tilting legal interpretations wildly in their favour (until class action law suits are filed).

So real goods that are not remote controlled by corporate executives do provide a lot more legal protection for the consumer.

Re:You are correct (1)

KDR_11k (778916) | more than 4 years ago | (#32137394)

As do most European countries. Here in Germany that creates funny situations like restaurants clearly having to mark whether the food is sold for consumption in-house (counts as a service, full tax) or take-away (runs under the reduced tax for food).

Re:You are correct (1)

idontgno (624372) | more than 4 years ago | (#32132078)

For example, you won't have to pay Taxes.

That's fine, except that in many jurisdictions, services are taxed at sale [google.com] just like goods. So that "right" is more hypothetical than real.

Licensed software means, effectively, you (the licensee) have only the rights the license concedes to you (in worst cases, almost none) plus any rights enforced by your jurisdiction's commerce codes and contract laws. And the latter may be available to you only after a court fight.

No, IANAL. This is not legal advice. Just an outsider's observations.

Re:You are correct (2, Informative)

Anonymous Coward | more than 4 years ago | (#32132634)

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.

Or patented? (0)

Anonymous Coward | more than 4 years ago | (#32132026)

Just sayin'.

Re:Good for consumers? (0)

Anonymous Coward | more than 4 years ago | (#32132940)

Both goods and services are taxed the same 10% in Australia.

Why would anyone live in Australia? (1)

realmolo (574068) | more than 4 years ago | (#32131760)

What is their deal? Their motto seems to be "The consumer is always a criminal". It's weird.

Re:Why would anyone live in Australia? (4, Funny)

Rene S. Hollan (1943) | more than 4 years ago | (#32131808)

Well, since Australia used to be a penal colony, that kind of makes some kind of twisted sense.

Re:Why would anyone live in Australia? (3, Interesting)

OzPeter (195038) | more than 4 years ago | (#32131922)

What is their deal? Their motto seems to be "The consumer is always a criminal". It's weird.

Well, since Australia used to be a penal colony, that kind of makes some kind of twisted sense.

I can't remember the comedian who said this, but:

I'd rather live in a country founded by criminals, than one founded by puritans

Having lived in both places I totally agree with him

Re:Why would anyone live in Australia? (5, Insightful)

Bing Tsher E (943915) | more than 4 years ago | (#32132166)

Australia wasn't founded by criminals. It was founded by wardens.

Re:Why would anyone live in Australia? (1)

OzPeter (195038) | more than 4 years ago | (#32132274)

Australia wasn't founded by criminals. It was founded by wardens.

Actually the Aboriginals founded it first, then the Dutch floundered on it, followed by Cook floundering on the other side of it and only then did it get founded by criminals - you think for a moment that the wardens actually did the work to build up the colony??

Beside which it was an American comedian, so he was lucky enough to just get to a country outside of the US, let alone not get the pedantry right

Re:Why would anyone live in Australia? (0)

Anonymous Coward | more than 4 years ago | (#32137310)

Actually the Aboriginals founded it first

Actually the Aboriginals committed genocide on the people who were there before them

Then sometime later the wardens (British) founded a society

Also given that most of the criminals were transported for minor crimes not worthy of death and subsequently worked to freedom (7 years or something similar) and whose children were free

The criminals became the wardens, joined society and whether they were the decision makers during or after, as well as the labour during or after doesn't really matter.

Initially a British society, founded by the British and peopled by the British; with a combination of minor criminals, judicial staff and free settlers.

Re:Why would anyone live in Australia? (1)

sapphire wyvern (1153271) | more than 4 years ago | (#32146848)

I don't think there's much evidence of pre-Aboriginal inhabitants of Australia. Unless you're thinking the megafauna were sapient?

Of course, if you have a citation, I'd be happy to read it...

Re:Why would anyone live in Australia? (0)

Anonymous Coward | more than 4 years ago | (#32149314)

Actually, the Dutch FOUNDERED. When a ship sinks it FOUNDERs, it doesn't FLOUNDER, the latter is a bottom dwelling flat fish.

Cook DIDN'T FOUNDER, he NEARLY FOUNDERED, but averted disaster with some clever canvas and rope work.

Re:Why would anyone live in Australia? (1)

syousef (465911) | more than 4 years ago | (#32134064)

Australia wasn't founded by criminals. It was founded by wardens.

You're conveniently leaving out the ex-criminals, who once they served their sentences often became successful and respected.

http://en.wikipedia.org/wiki/Convicts_in_Australia#See_also:_Famous_convicts_transported_to_Australia [wikipedia.org]

Everything from establishing ferry services (Billy Blue) to famous architect (Francis Greenway).

Re:Why would anyone live in Australia? (0)

Anonymous Coward | more than 4 years ago | (#32142266)

And Sweeney Todd!

Re:Why would anyone live in Australia? (0)

Anonymous Coward | more than 4 years ago | (#32135586)

and prostitutes.....

Re:Why would anyone live in Australia? (0)

Anonymous Coward | more than 4 years ago | (#32135758)

And the USA wasn't founded by Puritans, it was founded by an Italian who was pretending to be Spanish.

Re:Why would anyone live in Australia? (2, Informative)

MBGMorden (803437) | more than 4 years ago | (#32132486)

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:Why would anyone live in Australia? (1)

svtdragon (917476) | more than 4 years ago | (#32132814)

Which is ironic, since New England is arguably the *least* puritanical area of the country, or perhaps second to the area immediately around San Francisco.

Re:Why would anyone live in Australia? (1)

sjwt (161428) | more than 4 years ago | (#32133810)

Id learn a bit of history as so was America. Australia was used latter, 50K of the worst the British had where sent to the good old USA.

Penal colony [wikipedia.org]

Re:Why would anyone live in Australia? (0)

Anonymous Coward | more than 4 years ago | (#32131828)

Yeah, that is what happens when you start putting corporations on the same level as a person.

Re:Why would anyone live in Australia? (2, Funny)

Anonymous Coward | more than 4 years ago | (#32131880)

Yeah, that is what happens when you start putting corporations on the same level as a person.

RTFA. They were both corporations in this lawsuit. Oh well, that's what you get when you put people on the same level as Slashdot posters.

So if I purchase and THEN download... (1, Troll)

Rene S. Hollan (1943) | more than 4 years ago | (#32131766)

Does the "purchase" somehow get "erased" if I download AFTER providing my billing information? Do I get a credit after I pay you and THEN download?

What part of "this makes no sense" does the court not get?

I can understand for the cases of a download of software when no money changes hands (and indeed, this helps those of us who want to provide code free of charge with no warranty attached -- use at you own risk). But, it makes no sense if money has changed hands.

Re:So if I purchase and THEN download... (5, Insightful)

spun (1352) | more than 4 years ago | (#32131968)

I believe downloads do not meet the legal definition of 'goods' under AU law and therefore, would be considered a service. The judge felt compelled by the letter of the law to render the decision he did, even saying it would lead to injustice, and calling on parliament to change the law to reflect the changing definition of 'goods.'

It's amazing what one can learn by actually reading the articles. It is not, despite what most Slashdotters seem to think, a complete waste of time that only serves to keep one from achieving a first post.

Re:So if I purchase and THEN download... (1)

dpastern (1077461) | more than 4 years ago | (#32137902)

Yes, but the judge could have marked them as goods, forcing the government to change the definition. It's nothing more than a cop out on the judge's part. Politicians never do anything, other than line their fucking greedy pockets with more money and do more dirty deals with big business. The ordinary person just got screwed some more with this decision.,

Dave

Re:So if I purchase and THEN download... (1)

Rene S. Hollan (1943) | more than 4 years ago | (#32139246)

That's what I was originally thinking. If they are sold as goods in other contexts (say media over the counter at a retail outlet, or provided by the vendor on media), then the fact that the exact same thing can be sold in a manner that does not rely on anything physical should not change the fact that it is a good.

Look, it's not the packaging you're buying: if the box the "retail" version came in was printed in the "wrong" language for your locale, would you have a case under the Sale of Goods Act? Methinks no. But, if the software did nothing remotely similar to what it was purported to do (say a spreadsheet instead of a word processor), you would. So, the lack of packaging or media should not matter.

The judge was plain lazy.

Re:So if I purchase and THEN download... (1)

dpastern (1077461) | more than 4 years ago | (#32144322)

Absolutely. We have a judicial system that is so out of touch with the real world, and the ordinary person, and bases legal decisions not on common sense, but law (anyone who's studied law, and who is honest will tell you that law is not based on commonsense, far, far, far from it). We have a political system that doesn't give a fuck about the ordinary person, but ONLY caters to the needs of the wealthy, powerful and business, usually at the expense of the ordinary person. Nothing will get done. And when a political party is started that sets out to right these wrongs, it'll be blacklisted as a terrorist organisation by the established parties. They won't dare let anyone ruin their little "party" (pun intended).

Dave

Re:So if I purchase and THEN download... (0)

Anonymous Coward | more than 4 years ago | (#32144278)

This is long standing law in Australia. it was true at one stage that if you imported software on magnetic tape (showing my age there) you only had to declare the value of the tape, and not the value of the software. You will also note that the VAT is called "Goods and *Services* tax) and thus you can't use that same idea to avoid the 10% sales tax on software.

Re:So if I purchase and THEN download... (2, Informative)

rtfa-troll (1340807) | more than 4 years ago | (#32132052)

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:So if I purchase and THEN download... (1)

Hurricane78 (562437) | more than 4 years ago | (#32133868)

Software is information.
Information exists in bitspace.
Goods are matter that is traded.
Matter exists in meatspace.
The laws of bitspace are fundamentally different than those of meatspace.
Because in bitspace, ownership is not an applicable concept, since information can not be taken away from you (only the meatspace container can), and reproduction does not require production since the copies are loss- and effortless.
Trade requires ownership.
Ownership requires control.
Information that is passed on, can not be controlled anymore.
Information that in not passed on, can not be proven to exist.
Hence Software is not “goods”.

You can ask money for the service that creates the information. Or for the physical container that holds it.
Since such a service itself requires work and the container is matter.
But not for information itself.

Re:So if I purchase and THEN download... (0)

Anonymous Coward | more than 4 years ago | (#32135542)

Because in bitspace, ownership is not an applicable concept, [...]

The chown utility would like a word with you...

Re:So if I purchase and THEN download... (0)

Anonymous Coward | more than 4 years ago | (#32137030)

Courts are only meant to interpret laws, not create or change them. Now it's back in the hands of the politicians, where the real screw-ups happen.

Re:So if I purchase and THEN download... (1)

jweese (1746032) | more than 4 years ago | (#32139214)

So I guess AU doesn't have case law then like the USA.

Makes perfect sense (2, Interesting)

JesseMcDonald (536341) | more than 4 years ago | (#32131830)

Software is information—a set of instructions and related data. If pure information is not considered a good in other contexts then it makes sense that software delivered without any physical medium would not be considered a good either. Software purchased "over the counter" is not pure information, however, since you're buying the physical packaging as well as the information content.

Re:Makes perfect sense (0)

Anonymous Coward | more than 4 years ago | (#32132180)

I totally agree. Now I just need to write a script to download all the free ebooks on Amazon...

Re:Makes perfect sense (0, Flamebait)

oh_my_080980980 (773867) | more than 4 years ago | (#32132228)

You're an idiot.

Software still needs to be transferred from the physical medium, it doesn't magically appear on your hard drive. Thus, the method of distribution is irrelevant. Whether it's downloaded, provided on a CD/DVD, Flash drive, software NEEDS TO BE INSTALLED.

And FYI the physical medium is irrelevant to the software, it is used strictly as a means of conveyance.

The Jude was a complete and utter moron and yes it was his fucking job to interpret the law. Nothing in the law states that software need to be provided on some physical medium to act as an "over the counter" purchase!

Re:Makes perfect sense (4, Insightful)

idontgno (624372) | more than 4 years ago | (#32132526)

My, my, so angry.

You have your opinion. The judge has his opinion. Guess whose opinion is actually law?

Just because it's clear and obvious to you, doesn't make it so in the real world.

IANAL. You neither, I'm sure.

Your intuitive sense that intangible goods are still goods will probably win the day, but right now law hasn't caught up to that perspective. And this is not about right or wrong, this is about law. The judge himself indicated that he agrees with you, intuitively, but he only interprets law, not creates it. That's why he calls for the legislature to change it.

As it stands, it appears that "intangible goods" seems to be intimately tied up with and generally conflated with "services". Google hasn't helped me find any concrete examples to the contrary. (This is where not being a lawyer is unfortunate, since Google is not that good of a legal research department.) If you can cite any valid example of where the law recognizes software as a good rather than a service, please, point it out. That might redeem the reputation you're building for yourself as a ad-hominem flame-mongering idealist with impulse control issues and no idea how law actually works.

Re:Makes perfect sense (1)

techoi (1435019) | more than 4 years ago | (#32132952)

"Just because it's clear and obvious to you, doesn't make it so in the real world." - Best quote I have seen here in quite a while. Perfect.

Re:Makes perfect sense (1)

ignavus (213578) | more than 4 years ago | (#32135118)

"Just because it's clear and obvious to you, doesn't make it so in the real world." - Best quote I have seen here in quite a while. Perfect.

Just because it's perfect to you, doesn't make it so in the real world.

Re:Makes perfect sense (1)

ignavus (213578) | more than 4 years ago | (#32135112)

Guess whose opinion is actually law?

In this case, Parliament's.

Re:Makes perfect sense (2, Informative)

JesseMcDonald (536341) | more than 4 years ago | (#32135504)

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.

Re:Makes perfect sense (1)

Nefarious Wheel (628136) | more than 4 years ago | (#32136212)

Expressed in dollars and cents, pounds shilling and pence...

I wonder if this isn't the harbinger of some very interesting lawsuit in the future - about some corporation who licenses meals for home use, to be prepared on their home system's Sandwich Printer. You know, the one that prints your food, layer by layer, by protein assembly and deposition.

What happens if a challenge comes up as to whom the license fees belong to if the user prepared it on his own printer, using his own third-party Pasturised Processed Protein Food Spread Ink, using a cracked copy of Beetroot and Cream Cheese on Rye?

Actually thinking about that, the prospect of creative DRM makes me shudder...

Re:Makes perfect sense (1)

GNUALMAFUERTE (697061) | more than 4 years ago | (#32132578)

Last time I checked, electrons do have a mass, and are therefore "physical" products. Photons, on the other hand, are technically mass-less (Well, we are still not sure about it, but we consider them essentially mass-less, since they ought to be in order to move at the speed of light). So, if you have FTTP, you are technically buying a service, and not a good?

This whole definition is absolutely stupid. Cable television is considered a service too, and you are receiving just a signal. But if you copy the information you received, it becomes a good and gets covered by copyright law?

Some consistency would be really really nice.

Re:Makes perfect sense (2, Interesting)

JesseMcDonald (536341) | more than 4 years ago | (#32132798)

Last time I checked, electrons do have a mass, and are therefore "physical" products.

Yes, they are. However, you're not receiving any of the specific electrons (or photons) handled by the sender. At most those electrons/photons came from your ISP, or, in the case of electrons, the wire itself. Only the abstract pattern—the information—is communicated all the way from the sender to the recipient.

You might have a case for considering bulk electricity a physical good, however.

Re:Makes perfect sense (2, Interesting)

Hurricane78 (562437) | more than 4 years ago | (#32133994)

Exactly. As soon as you see the production of information as a service, all the problems with laws, making money from it, DRM, file sharing etc instantly vanish.

And interestingly, most artist already do the service business model. They just don’t know it.
They offer the service of music production to the distributors. But it’s those distributors, who then try to cram it into a business model that has no relation to physical reality.
If the artists just start seeing the end users themselves as the “distributors”, and offer the service to them, then there simply is no problem anymore, and we’re all happy.

(I won’t repeat the business model I designed, to make this work. But I will repeat the main rules: If you want money, demand it at the first time you pass it on. Later it’s too late, because then the one you passed it on to, can just as well give it away for free to everyone, if he does not have something to gain from keeping it a secret. And for the rest, just act like your community were your investor. From the first pitch, over the demo, to the final completion of the contract.)

Re:Makes perfect sense (1)

jon3k (691256) | more than 4 years ago | (#32175840)

You're buying data either way. The packaging is a delivery mechanism just like the Internet.

What about pirating software then? (1)

Saishuuheiki (1657565) | more than 4 years ago | (#32131832)

How does this affect downloading software illegally?

If the business is not subject to a contract saying what it's software will have, why should the customer be subject to the same contract about what the do with it?

Then the companies should not get copyright. (2, Insightful)

RyanFenton (230700) | more than 4 years ago | (#32131844)

If the companies are simply providing a service to write arbitrary bytes to a customers' hard drive, not selling a market good, then they shouldn't get copyright protection on those bytes being written either. After all, those bytes aren't a sold good, but are merely a byproduct of the service provided.

Ryan Fenton

Re:Then the companies should not get copyright. (1, Informative)

vbraga (228124) | more than 4 years ago | (#32132208)

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:Then the companies should not get copyright. (1)

El_Muerte_TDS (592157) | more than 4 years ago | (#32132210)

Software is to "arbitrary" bytes, as a story is to "arbitrary" words. But they are not arbitrary, they are specially crafted.
The story is copyrighted, not the physical book.

Re:Then the companies should not get copyright. (1)

Bing Tsher E (943915) | more than 4 years ago | (#32132216)

Copyright law has nothing to do with sales or selling anything. I can copyright a poem, never sell it to anybody, and still retain copyright over it.

I can sing a song, or sketch a drawing on your hard drive with a sharpie, and still retain copyright over it.

Re:Then the companies should not get copyright. (2, Interesting)

Hurricane78 (562437) | more than 4 years ago | (#32134018)

And that is why copyright is wrong. It has nothing to do with physical reality.
And additionally, with a business model that is also based on reality, there also is no need for it. At all.

Re:Then the companies should not get copyright. (0)

Anonymous Coward | more than 4 years ago | (#32132416)

I agree. So all those "illegal" downloads are NOT goods! Not goods, not have value, case dismissed, thank you, next! I don't know about anyone else, but I am now going to download ripped non-goods copies of every major piece of software our there - remember this ruling folks, I have NOT received any goods.

Their Definition of Goods (2, Informative)

Jhyrryl (208418) | more than 4 years ago | (#32131864)

"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] .

Let's be honest here (1)

idontgno (624372) | more than 4 years ago | (#32132158)

In the case of downloaded software, not only is most of clearly not "goods", a great deal of it must be characterized as "terribles".

Sell disc with code for online download of content (1)

Orga (1720130) | more than 4 years ago | (#32132350)

Seems to me this would open the door to selling something like a PS3, simply hardware, and offer a code to download the OS. The hardware itself does nothing except allow you to open a connection to download the OS at first run. This way if the hardware fails, sure they can return it. But the software you're stuck with.

Re:Sell disc with code for online download of cont (2, Insightful)

idontgno (624372) | more than 4 years ago | (#32132616)

Well, other than the fact that a PS3 isn't completely blank out of the box, that's precisely how a PS3 works. You bought the hardware. You license the software, and SCE can (and will) change it any time they want--because it's still their software. The recent "Other OS" debacle is the logical extreme of the "software as service" approach, as well as the typical disclaimers of warranty you've seen in EULAs (not that those would fare so well in court, IMHO... the serviceability and suitability for purposes of use of the hardware being completely dependent on the software, after all.)

EULA (1)

egcagrac0 (1410377) | more than 4 years ago | (#32132378)

All the EULAs I've read in the past 30 years say that you're not buying the software, you're licensing the use of a copy of the software.

Weird that it's getting twisted like this, but I've been surprised by Australian law before.

Re:EULA (1)

geekoid (135745) | more than 4 years ago | (#32133080)

They can also say people in red shirts have to pay double. That doesn't make it enforcible or even correct.

Re:EULA (2, Funny)

dissy (172727) | more than 4 years ago | (#32133652)

They can also say people in red shirts have to pay double. That doesn't make it enforcible or even correct.

That rule is only there because there's a much smaller window of opportunity to get money from a red shirt, before they are called to the bridge or on an away mission and their spending days are over!

Protection (1)

adeft (1805910) | more than 4 years ago | (#32132392)

We get a certain protection for purchasing goods from some distributers, would this no longer apply to an item newly classified as a "non-good"?

well then (1)

geekoid (135745) | more than 4 years ago | (#32133062)

they shouldn't be taxed as goods then.

Re:well then (1)

Aaron B Lingwood (1288412) | more than 4 years ago | (#32137356)

they shouldn't be taxed as goods then.

There is no state sales tax in NSW. We have a Goods and Services Tax (GST) of 10% which is federal but shared with the states. If it is not goods, it is a service. A few things like whole foods (water, sugar, flour. f&v) are exempt.

This makes things interesting for restaurants and cafes. If I purchase a bottle of 100% fruit juice for take-out - I pay no GST as the goods are a whole food and thus exempt. However, if I were to consume that juice at the restaurant, the sale would then also constitute a service and GST would be applied.

Unfortunately, electronics, software and telecommunications are ALWAYS taxed.

Thats actually bad... (1)

AlgorithMan (937244) | more than 4 years ago | (#32133462)

I think this just means that you can't resell your software-licenses AS LONG as you didn't buy a physical storage device...

For businesses... (0)

Anonymous Coward | more than 4 years ago | (#32133782)

This is a no brainer really. Take delivery of the software on a CDROM or such. Its a bit of a shitter that this dude has been left out of pocket, but his case will serve as a lesson to other businesses - its not that much more to get a CDROM shipped, and for joe consumer, as I understand it, the law is changing.

Just had a conversation with the tax man today (1)

ducomputergeek (595742) | more than 4 years ago | (#32134948)

Got a phone call from the Illinois Dept. of Revenue wondering why we hadn't paid sales tax. Well, it's because our software is opensource. We don't see it, we sell installation, implementation, and support contracts. The guy on the other end of the phone could not get it through his head until I explained: 6% of $0.00 = $0.00.

Remember! (1)

SJ2000 (1128057) | more than 4 years ago | (#32136572)

It's important to remember this is only applicable to one Australian State, New South Wales, and is not National.

Implications for banned materials? (1)

atomicstrawberry (955148) | more than 4 years ago | (#32151172)

Technically in Australia it's illegal to import into the country anything that has been refused classification - the situation with our backward laws regarding the lack of an 18+ game rating is well-known. It's legal to possess the material, but technically bringing them into the country is an offense.

However if downloaded material is not 'goods' then do import restrictions apply? Customs & import laws are only applied to goods, after all.

seems quite logical ... (1)

hany (3601) | more than 4 years ago | (#32153602)

That seems quite logical and, consequently, should drive people to buying over the counter.

Or negotiate and demand same rights for the downloaded software in the EULA (or something) and do not buy downloads without those same right granted "in writing".

Physical vs Digital, First Sale vs Redownloads (1)

Luyseyal (3154) | more than 4 years ago | (#32155880)

Probably too late to this discussion, but what the heck.

I think big media needs to be forced to make a choice between:

1) Physical media, first sale applies. It is not a "license", it is a genuine copy and you can do whatever you want with it apart from making it available for others to download.

2) Digital media, first sale does not apply. However, it is a license subject to the laws of [insert country]. One mandatory feature is free or very cheap redownloadability. A second mandatory feature is 3 free copies for personal use (iPod, computer, and offline back-up).

They can't have their cake and eat it, too. If they are going to eliminate first sale, they should be forced to allow you to redownload stuff since you have a permanent license to XYZ song/movie/whatever. So, they can't make you buy it again and again and again (vinyl, 8-track, cassette, CD, etc.). Same rationale for the 3 copies. You can't resell your license so they have a higher burden.

What do you think?
-l

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