The software Proteus - UsedSoft changing our understanding of software as 'saleable goods'

One of the ongoing conundrums in the field of IT law is the nature of software. Pragmatic solutions have been adopted, and lawyers and developers alike have become comfortable that contracts and licences can be drafted and concluded in relative certainty despite the fundamental conceptual problem. As Atiyah's Sale of Goods puts it: ... the key to the conundrum is not to get lost in metaphysical questions as to whether or not software is goods, but to focus on who is being sued in respect of what sort of defect, and to be clear as to the basis on which liability is being imposed. (Atiyah 2010, 78-79)However, the decisions in UsedSoft (C-128/11 [2012] All E.R. (EC) 1220) have illustrated that these pragmatic solutions are just that, contingent arrangements that can be shaped, and changed, and re-interpreted to fit new legal and economic realities. Repeated legislation in this area has caused the Court of Justice of the European Union (CJEU) to reshape and remould its ideas about what software is at various different stages and although these ideas have usually loosely tracked technological and business development, and therefore met the expectations of both the legal and business communities, this time both have been taken by surprise. Like the mythical Proteus who changed shape to avoid having to foretell the future, the CJEU has repeatedly changed the nature of software in its attempts to fit law to the economic a technical future. © 2014 © 2014 Taylor & Francis