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Since material objects are finite and are subject to the effect of time and use, obsolescence of movable property is atomic or structural. Things become derelict, outdated, and are ultimately discarded. Interestingly, classic property law envisions situations where things become useless. When this happens, objects are removed from law, or at least disqualified as property. Property is something that can be valued and possessed; things of no commercial value have no transactional worth and are dealt with differently. In many traditions, for instance, “sacred objects” are outside commerce, abandoned immovables return to the State, and res derelictae become things without an owner. To some extent, civil law property informs civil liability rules with respect to the use of property. It creates obligations for the owner or custodian of the property, and it also creates a specific obligation for the seller to deliver the property and its accessories free of defects which render it unfit for the intended use.
Obsolescence in the age of connected objects raises some interesting questions: Can the owner of intellectual property be held liable for the poor performance of the operating system, database, algorithms or software that control the object? Should a liability regime be built into intellectual property laws, imposing some level of obligations upon the creators? Software-based products simply perform and are used differently than traditional products. Liability regimes are contemporaneous and consubstantial to physicality. They have not yet fully developed to address failures or defects of intangibles, in part because such intangibles are polymorphous: intangible objects can evolve, be updated, or tempered with by the users or IP owners to perform new functions, etc. Accordingly, the expectations of users (as a category of consumers) with respect to intelligent objects and digital products may require a different approach to liability. The numerous class action lawsuits filed against Apple recently offer an unexpected - but timely -laboratory to explore these issues. Programmed obsolescence is the new apple of discord!
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