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DIRECTIVE 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees +<u>Art. 1(2)(b): ''“consumer goods: shall mean any tangible movable item”''. The question is therefore if the Directive can apply also to digital content supplied through the Net, and not on a tangible medium like CDs, DVDs etc.</u>  +
Digital Consumers and The Law. Towards a Cohesive European Framework +CJEU, case 362/88, ''GB-INNO v. Confédération du Commerce Luxembourgoise'', § 18: ''“under Community law concerning consumer protection the provision of information to the consumers is considered to be one of the principal requirements”''. Consumer information is particularly relevant when dealing with digital content, because its usability depends for the most part on licensing conditions (when digital content is protected by copyright) and technology. <u>Indeed, in an analog context, there are standardized and well-known benchmarks (which depend on the intrinsic characteristics of analog goods – accessibility to the embedded corpus mysticum – if present – is possible without reproduction; there is no need for complementary devices of a particular brand to use the good; uses that are susceptible to harm the provider of the good are not easy to put in place) that establish what can be done with the good. On the contrary, when we have digital goods, on one hand it is potentially possible to put in place all kind of (harmful) activities simply using an initial single copy of a work, but on the other hand the simplest activities may be prevented through technology: i.e. there are no intrinsic features when dealing with digital content.</u> It is therefore important for consumers to be informed about the interoperability (need for particular hardware or software requirements; technical tying to goods or services of a particular brand) and the functionality of the product (DRM, TPMs, region code, tracking of consumers' behavior).  +, <u>So, about interoperability: if information isn't provided about lack of interoperability because of standard/format incompatibility or because of TPMs, it is a violation of information obligation according to CRD and a non-conformity of the product according to Consumer Sales Directive; if information is provided, and it is provided in a way that makes consumer's legitimate expectations of interoperability (we may question if an information provided in a way that can't make the consumer's legitimate expectations fall allows the applicability only of the Consumer Sales Directive or also of the CRD, seen that – in the latter – the burden of proof of the compliance with the information requirements belongs to the trader, but it is unclear if he has to prove only the formal satisfaction of the requirement or also the effectiveness of the information provided), these Directives can't help, but the UCP Directive and competition law perhaps can.</u>  +, '''''DIRECTIVE 2011/83/EU on consumer rights (Consumer Rights Directive).''''' Recital 19: ''“Digital content means data which are produced and supplied in digital form, such as computer programs, applications, games, music, videos or texts, irrespective of whether they are accessed through downloading or streaming, from a tangible medium or through any other means. Contracts for the supply of digital content should fall within the scope of this Directive. If digital content is supplied on a tangible medium, such as a CD or a DVD, it should be considered as goods within the meaning of this Directive. Similarly to contracts for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, or of district heating, contracts for digital content which is not supplied on a tangible medium should be classified, for the purpose of this Directive, neither as sales contracts nor as service contracts. For such contracts, the consumer should have a right of withdrawal unless he has consented to the beginning of the performance of the contract during the withdrawal period and has acknowledged that he will consequently lose the right to withdraw from the contract. In addition to the general information requirements, the trader should inform the consumer about the functionality and the relevant interoperability of digital content. The notion of functionality should refer to the ways in which digital content can be used, for instance for the tracking of consumer behaviour; it should also refer to the absence or presence of any technical restrictions such as protection via Digital Rights Management or region coding. The notion of relevant interoperability is meant to describe the information regarding the standard hardware and software environment with which the digital content is compatible, for instance the operating system, the necessary version and certain hardware features. The Commission should examine the need for further harmonisation of provisions in respect of digital content and submit, if necessary, a legislative proposal for addressing this matter.”'' Art. 5(1): ''“Before the consumer is bound by a contract other than a distance or an off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner, if that information is not already apparent from the context: (...) (g) where applicable, the functionality, including applicable technical protection measures, of digital content; (h) where applicable, any relevant interoperability of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of.”''  +