Internet products can include images, data, content, and more. Because these products are digital, and not tangible, it can be difficult to consider them as a product. Products are articles or substances that are manufactured or refined for sale to consumers. The rampant sharing of digital internet products has resulted in two types of product liability lawsuits: providing defective or harmful internet products and facilitating the providing of such content. Courts currently support the position that even though internet products are not tangible, providers and facilitators can be held liable from harm that results from their distribution or consumption by the public.
Many states have adopted the Third Restatement, and in those states that have not, courts frequently refer to it as a guideline with respect to tort principles. The Third Restatement defines products as tangible personal property distributed commercially for use or consumption. However, according to this text, a product does not need to be tangible. Products also do not need to be sold outright to be considered a product for product liability purposes. Product liability can still apply to internet products that are licensed.
Courts have specifically stated that they will not rely on a dictionary definition of product for product liability purposes, but instead have opted to use a policy-based and fact sensitive approach to determining whether a transaction triggers product liability law protections.
The Concept of Internet Products
The concept of an internet product is somewhat abstract, so it might help to consider a few examples of internet product liability. Whereby a consumer uses an internet product as an instrument is one example, such as if an online platform offers a product to distinguish between edible and poisonous plants. Another example is when an entity facilitates the sharing of a defective internet product.
Like almost any legal principle, there are certain exceptions. Not all internet products will be products for purposes of establishing liability. For example, courts have held that custom-made software is not a product. This has been held to be more akin to a service than a product, and thus, not subject to product liability.
However, the law is still developing in this area. Although a company could argue that customized interfaces are a service, it is not clear at this point whether a court would accept that argument. The ninth circuit has held that training and upgrading were not enough to vault a software product from a product to a service. Similarly, an Illinois court has found that software development agreements governed by the Uniform Commercial Code are not services.
New Jersey Product Liability Lawyers at Eichen Crutchlow Zaslow, LLP Fight for Victims of Dangerous ProductsIf you have been harmed by a dangerous or defective product, schedule a free consultation with our experienced New Jersey product liability lawyers at Eichen Crutchlow Zaslow, LLP. With offices located in Edison, Red Bank, and Toms River, New Jersey, we proudly and vigorously represent injured consumers throughout the state. To learn more, call us at 732-777-0100 or contact us online today.