On-line Delivery of Digital Contents
- Goods, Services or mixture?
- Jurisdiction should be provided in a State where the receiver of the contents were habitually resident.
- Disclaimer should be permitted.
For example, letís think about contracts on On-line Delivery of Digital Contents, such as music or software. First of all, there is a problem whether digital contents should be regarded as goods or services. I donít intend to deal with this issue right now, but the conclusion should be the same whether it is considered to be goods or services.
If you treat digital contents as goods, the problem is where they were supplied.
If you treat digital contents as services, the problem is where they were provided.
And if you think it as a mixture of goods and services, the problem is where performance of the principal obligation took place.
In any event, what you have to decide is where the contents were supplied, or provided, or performance of the obligation took place.
In this context, I think basically jurisdiction should be provided in a State where the receiver of the contents were habitually resident If the country of origin is a place where jurisdiction is provided, I am afraid that race to the bottom might follow. On the other hand, however, from practical points of view, it may be difficult in some cases to identify where the reciever of digital contents were habitually resident, which will harm the predictability of sellers of digital contents. Therefore, I think it necessary to introduce a disclaimer in this article and I will explain you more details later on how disclaimers should be done.