Australia’s consumer laws still don’t cover e-books and many other digital products


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E-books, downloaded music and other digital products aren’t covered by Australian consumer law.
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Benjamin Hayward, Monash University

Australia’s consumer laws aren’t adequately protecting Australians who buy digital products such as e-books and digital music. If a TV doesn’t work, or an iPod or computer is faulty, the law provides a remedy. The same is true for physical books and music media – but not for their online counterparts.

Under Australian law consumers are entitled to receive goods that are of acceptable quality and fit for their purposes, and that correspond with their description, among other legally enforceable consumer guarantees. But these guarantees apply only to “goods” and “services”.

How digital products fit (or don’t fit) into the goods and services categories has been debated for decades, and the law still hasn’t properly accommodated them.

Australia’s consumer laws went through a major update in 2010, but remain out of date. The digital world moves fast, but our consumer laws remain rooted in a system that assumes “goods” and “services” are the only types of trade. These laws still owe much to sale of goods legislation passed in the United Kingdom all the way back in 1893.

What are consumer laws?

The law generally expects that people and companies entering into contracts are able to look after their own interests. Consumer laws exist to provide additional legal protection to consumers, who are usually in an unequal bargaining position compared to the companies they deal with.

A consumer is someone who acquires goods or services that are ordinarily bought for personal, domestic or household use, or for a price of A$40,000 or less.

Consumer purchases include a range of items – TVs, iPods and computers are just some examples. Where a consumer purchases goods, the law requires that those goods comply with particular consumer guarantees, no matter what the terms and conditions of sale say.

If a new “smart TV” won’t connect to wifi, or if an iPod or computer’s battery doesn’t last as long as it should, the consumer guarantees provide a remedy.




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Australian consumer law is failing beer drinkers


It was during the 1980s and through to the 2000s that initial questions arose over how the law treated software. The question at this time was whether software counted as “goods”. A series of court cases found that software was considered goods only if it was supplied within a tangible object – for example, on a disk (later, on a CD or DVD).

Because of this, when consumers started downloading software over the internet they were left without many protections. If software downloaded directly from the internet didn’t do what it was supposed to do, they might have no effective legal rights at all.

In 2010, with the Competition and Consumer Act, the definition of goods was finally amended to include “computer software”. But this still excludes many common digital products, such as e-books and digital music. These do not constitute “computer software” as the law understands it.




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Recent court proceedings highlight the large gap in the Australian consumer law.

In 2016, the Australian Competition and Consumer Commission brought a Federal Court case against Valve Corporation, alleging it misrepresented consumers’ rights concerning content bought through the Steam video game platform.

Justice Edelman found that Valve Corporation had supplied “goods”, being “computer software”, but also found that “non-executable data was not computer software”, and that such non-executable data could include “music and html images”.

In other words, the computer games were “goods” (attracting the law’s protection) because they were executable programs. This part of the Federal Court’s decision was not challenged in the Full Court of the Federal Court, which dismissed Valve Corp’s appeal in December 2017.

If this definition of computer software is applied in future cases, then there is a legal gap when it comes to other types of digital products. E-books and digital music (among others) require executable files to work, but aren’t themselves executable files, so would not constitute computer software.

If they don’t constitute computer software, they also aren’t goods under the law. And if they aren’t goods, consumers who acquire these digital products don’t obtain the protections and guarantees of Australia’s consumer laws.

The wider consequences of inequality in the law

Beyond this problem for consumers, this legal gap also creates an inequality for retailers. Retailers that deal in physical books and music (whether they are “bricks and mortar” or online) are required to comply with the guarantees and protections under Australian consumer law.

This means that businesses dealing in physical goods incur costs that those that sell only digital equivalents (apart from software) can avoid. Australia is in effect subsidising those who sell only digital products (many of them foreign companies) by not subjecting them to the same legal liabilities.




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A simple legislative amendment can easily solve this problem. Rather than providing that goods includes “computer software”, a legal provision stipulating that goods include “computer software and other types of digital products” would capture the broader range of products we see in the marketplace today.

We can learn from the United Kingdom, where digital products are given their own dedicated consumer rights regime. The United Kingdom has a series of consumer rights applicable to the supply of goods, the supply of services, and also to the supply of digital content.

The ConversationAustralia doesn’t necessarily need to move this far – yet. But the British legislation could be an interesting model for longer-term consumer law reform in Australia.

Benjamin Hayward, Senior Lecturer, Monash University

This article was originally published on The Conversation. Read the original article.

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Noisetrade Ebooks


I have been a user of Noisetrade for some time – for music. Now Noisetrade is looking at ebooks as well. A great idea. Noisetrade is a means of introducing people to now both music and ebooks via free samples and sometimes entire products, be it an album or ebook.

For more visit:
http://www.mediabistro.com/galleycat/noise-trade-books-helps-you-market-your-book_b82448,/p>

Article: Amazon of the Future


The link below is to an article that takes a look at the future of Amazon and its move toward tech-oriented products.

For more visit:
http://www.telegraph.co.uk/finance/newsbysector/retailandconsumer/9770827/Goliath-vs-Goliath…Amazon-takes-on-Apple-and-Google.html

Article: Microsoft to Join Barnes & Noble in Formation of Newco


The link below is to an article concerning a partnership between Microsoft and Barnes & Noble in the formation of Newco, which will look to develop digital reading products.

For more, visit:
http://www.microsoft.com/en-us/news/Press/2012/Apr12/04-30CorpNews.aspx

Book Review: Currently Reading – Print is Dead, by Jeff Gomez


I have been reading ‘Print is Dead – Books in our Digital Age,’ by Jeff Gomez and have now completed my reading of it. The final chapter ‘Will Books Disappear?’ asks the obvious question concerning books in a digital future. The answer is both yes and no I think. Certainly books will still be around for the foreseeable future – niche products, throw away copies, second-hand books, collectors items, etc. However, traditional book production will certainly slow and far fewer will be printed and distributed in the ‘traditional’ manner.

In the digital age, Print on Demand services may grow and maintain popularity for a period, with services like Google Books allowing the ability to print an out of print work cheaply and quickly. Allowing these works to also be accessed via the World Wide Web and in ebook format will limit the use of this technology I would think.

With the content of books still being the main resource, employment around the content of books should also remain. The need for editors, publishers and the like, will still be required for excellence in ebook production. The quality of books should continue undiminished, though there will also be avenues for lesser quality works via the World Wide Web. So the book will not disappear, only its appearance will be transformed and the content remain the same.

 

Closing Thoughts on the Book

‘Print is Dead – Books in our Digital Age’ covers no new ground, but it does cover the same ground of the traditional book versus the ebook very well. It presents its case and does it well. Traditional book champions will more than likely remain unmoved by the arguments of Jeff Gomez and those that herald the arrival of ebooks will probably agree with the sentiment expressed in the pages of this book. I believe ‘Print is Dead’ presents a very balanced argument for ebooks in the digital age and presents a future for books that is upon us, in inevitable and that offers up some wonderful possibilities if we are willing to embrace them. I would recoomend this book to anyone interested in the traditional book versus ebook debate.

See also:
http://www.dontcallhome.com/books.html (Website of Jeff Gomez)
Podcast (Excerpts from the Book)
Google Books
Amazon

Changing the World: November 30 – Supporting Local People


Today’s suggestion is one I really do like – it is about supporting the local people of isolated rural villages, especially in Third World countries (not that the book really makes that distinction).

To do this, the suggestion is to buy products produced by local artisans via the web. This is a great suggestion and one I think I will try and support from time to time. It is a great way to assist people in difficult situations.

Some useful websites:

www.villageleap.com

www.eShopAfrica.com

www.novica.com

A response to reading ‘365 Ways to Change the World,’ by Michael Norton