Monday, 28 May 2012

Hardware: Defined as "Goods"

        As we purchased any hardware in the market, we are exposed to the probability of having an unoriginal hardware in such a way that its functionality is altered to become a hardware that is out of our expectation and needs. This process of altering hardware specification is called Hardware Trojan horses (HTHs). HTH are the malicious altering of hardware specification or implementation in such a way that its functionality is altered under a set of conditions defined by the attacker.
           It is quite difficult to find a proper case in our legal system as a reference for legal issues related to Hardware Trojans Horse. However, it might be relevant to refer to Consumer Protection Act 1999 and Sale of Goods Act 1957. This is due to the fact that hardware is purchased and acquired in a tangible and physical state.
            This is in accordance with definition of “goods” under Section 2 of Sale of Goods Act 1957 which reads:

“goods” means every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale;

            Then, we also can refer to the Section 3(1) of the Consumer Protection Act 1999 which reads:
"goods" means goods which are primarily purchased, used or consumed for personal, domestic or household purposes, and includes –
(a) goods attached to, or incorporated in, any real or personal property;
(b) animals, including fish;
(c) vessels and vehicles;
(d) UTILITIES; and
(e) trees, plants and crops whether on, under or attached to land or not, 
but does not include choses in action, including negotiable instruments, shares, debentures and money.

            Then, for a clearer definition, we can refer to the St Albans City and District Council v International Computers Ltd, where Sir Iain Glidewell has ruled that:

In both the Section 61 of Sale of Goods Act 1979 and Section 18 of the Supply of Goods and Services Act 1982 the definition of "goods" is "includes all personal chattels other than things in action and money ...." Clearly a disc is within this definition. Equally clearly, a program, of itself, is not.

            Thus, from the above definition, we can conclude that hardware is included in the definition of “goods”. Next, we refer to the Section 32 of Consumer Protection Act 1999 for the implied guarantee as to acceptable quality.

Section 32. Implied guarantee as to acceptable quality
(1) Where goods are supplied to a consumer there shall be implied a guarantee that the goods are of acceptable quality. 
(2) For the purposes of subsection (1), goods shall be deemed to be of acceptable quality -
     (a) if they are -
          (i) fit for all the purposes for which goods of the type in question are commonly                  supplied; 
          (ii) acceptable in appearance and finish; 
          (iii) FREE FROM MINOR DEFECTS; 
          (iv) safe; and 
          (v) durable; and 
    (b) a reasonable consumer fully acquainted with the state and condition of the goods,                       including ANY HIDDEN DEFECTS, would regard the goods as acceptable having           regard to -
          (i) the nature of the goods; 
          (ii) the price; 
          (iii) any statements made about the goods on any packaging or label on the goods; 
          (iv) any representation made about the goods by the supplier or the manufacturer; and 
          (v) all other relevant circumstances of the supply of the goods. 
(3) Where any defects in the goods have been specifically drawn to the consumer's attention before he agrees to the supply, then, the goods shall not be deemed to have failed to comply with the implied guarantee as to acceptable quality by reason only of those defects. 
(4) Where goods are displayed for sale or hire, the defects that are to be treated as having been specifically drawn to the consumer's attention for the purposes of subsection (3) shall be defects disclosed on a written notice displayed with the goods. 
(5) Goods shall not be deemed to have failed to comply with the implied guarantee as to acceptable quality if 
     (a) the goods have been used in a manner or to an extent which is inconsistent with the manner or extent     
          of use that a reasonable consumer would expect to obtain from the goods; and
    (b) the goods would have complied with the implied guarantee as to acceptable quality if they had not
          been used in that manner or to that extent.
(6) A reference in subsections (3) and (4) to a defect is a reference to any failure of the goods to comply with the implied guarantee as to acceptable quality.

            Therefore, as a remedy, the consumer can refer to Part VI of Consumer Protection Act 1999:

Part VI - Rights Against Suppliers In Respect Of Guarantees In The Supply Of Goods
Section 39. Consumer's right of redress against suppliers
This Part gives a consumer a right of redress against a supplier of goods where the goods fail to comply with any of the implied guarantees under sections 31 to 37.

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