Software is a term used to describe the collections of instructions and data (also referred to as programs), that allow computers to operate. Without software, computers are redundant vessels, unable to perform any dynamic functions. From a legal point of view, software is remarkable for two principal reasons. First, its unique characteristics mean that it is not truly analogous to any conventional chattel with which the law is familiar. Secondly, despite the fact that it is one of the most ubiquitous commodities of our commercial age, it has no readily discernible legal identity.
It is surprising, for instance, that even the most venerable legal texts currently devote only a few paragraphs to this commonplace product and its place within the law relating to the sale of goods. (FN1) This, combined with the relative paucity of judicial authority on the matter, means that it is not clear what manner of legal treatment should apply to disputes involving software. This uncertainty manifests itself in the question of whether software should count as goods for the purposes of the Sale of Goods Act 1979 (SGA) or the 1980 United Nations Convention on the International Sale of Goods (CISG). It is the purpose of this article to make the case for software to be classed as goods, under both the SGA and the CISG, where the circumstances are appropriate. Find out more here.