Monday, 28 May 2012


From the last post, I had gave you a set of problems. So in this post, I will give you the main idea to solve all of these problems.

Firstly, we could see that from problem 1 and 3, the problem caused when the new software been installed. When inspected, it is true that the software itself contains malware.

For both of these problems, the ones that liable for the damages is the producer for the software. The producer of the software may be the company or the programmer himself.  

It is not a problem to trace the producer for problem 1, as the software bought is a tangible item. It is easy to seek remedies as you have the proof that cause the damages. However, for the problem 3, it is quite hard to proof as it is an intangible product.

In Malaysia, the definition of software itself is still open for discussion. However, some of the Acts had define the goods as:

Electronics Commerce Act 2006
This act does not define "good" for the purpose of electronic commerce transition. The act caters to software available through ESD (electronic software download) as opposed to bundle software.

Consumer Protection Act
...transaction now can be use by means of electronic..

Sale of Good Act
They define goods as every kind of "movable property". Therefore  it is illogical to put software under this act definition of "goods"

Because of this, the remedies for the damages happened in the matter of software is hard to gain.
This is true as stated in the case of Gammasonics Institute for Medical Research v Comrad Medical (an Australian case), the court itself not reluctant to stretch the inclusive nature of the definition of goods. Here we can see that the court wanted to force the legislature body to give the new definition of goods that include software as one of its. On of the best example that Malaysia can follow is from the New Zealand as in their Consumer Guarantees Act, to avoid doubt, they definition of goods include the computer software.

Move on to the problem 2, it is quiet easy to gain an answer for that as surely the producer of the hardware, ZBOX will be held liable as they are also the owner for the online operating system of ZBOX. In the problem 2 it is not hard to proof the liability as it consist of something tangible, which is the console.

I think I should also stated here the remedies for the damages on the hardware or the software.

There are three types of remedies can be gained which is:
  1. Contractual civil remedies which are derived from the law of contract.
  2. Stand alone civil remedies which do not rely on statutory provisions, but still can be enforced and;
  3. Civil and criminal prosecutions 
We should know that when the software we bought is embedded with Malware, the contract for purchasing the software is voidable. We can this matter clearly in the case of  ProCD, Inc. v. Zeidenberg. In this case, the enforceability of "shrink wrap license" are being questioned. The court held that Zeidenberg did accept the offer by clicking through. The court noted, "He had no choice, because the software splashed the license on the screen and would not let him proceed without indicating acceptance." The court stated that Zeidenberg could have rejected the terms of the contract and returned the software. This is the reason why the EULA (End User License Agreement) contract is a voidable contract if there is a Malware embedded in it.

We as the consumer is well protected by the law. The law put the liability to the producer of the software as it is stated in the case of Rustad v Koenig.

Even though in Malaysia there still no ruckus happen because of all these matters (as lot of problems settled quietly), we should educate ourselves with these matter to become a good consumer for ourselves. 

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