The Mac App Store is a great way of buying software.
Purchasing and downloading apps through a single account (and having them available to re-download to other computers) makes life a lot simpler. I also like the trend towards reducing the price of apps when adding them to the App Store.
What happens though if you need to get a refund for an App which is unsuitable or doesn't work (or you just change your mind)?
I recently bought and downloaded Aperture through the Mac App Store and found that it didn't play nicely with my MacBook Pro.
I tried every tip I could find online, but nothing stopped it from slowing the entire system down to a snail's pace.
In the end I switched back to iPhoto (which actually does what I need in terms of RAW processing) and decided to see if I could get a refund for Aperture.
I tracked down this form, which is the one you need to complete to report a problem with an app from the Mac App Store.
Whilst doing this I wondered whether the 7-day cancellation period under the Consumer Protection (Distance Selling) Regulations 2000 would apply to Mac App Store purchases.
If I had ordered a copy of Aperture on CD-ROM then it definitely wouldn't. Regulation 13(1) of the DSR excludes the cancellation period:-
(d)for the supply of audio or video recordings or computer software if they are unsealed by the consumer;
The policy reasons behind this are obvious; it would make it too easy for consumers to copy the media and then return it.
Software downloads aren't covered by this exclusion, but they are dealt with in the OFT guidance on Distance Selling. This states that software downloads should be considered as services because "...the consumer does not receive physical goods".
Under regulation 13(1)(a) of the DSR the 7-day period can be excluded for services if:
...performance of the contract has begun with the consumer's agreement before the end of the cancellation period...
This means that providers of downloads can state in their terms and conditions that the right to cancel ends once the download starts. In fact Apple take exactly this approach; the Mac App Store terms and conditions say:-
The Stores’ services commence immediately when you begin to download a product from the relevant Store and you will not have a right to cancel your contract once the services commence unless you have received an unacceptably poor download...
I can't really argue with Apple's approach as it seems to be consistent with the DSR as interprated by the OFT.
When you look at this in more depth though, it looks a bit crazy. Nothing in the DSR or the EU Directive to which they give effect actually says that downloaded software is a service and not a product.
This is just the position taken by the OFT in their guidance, and I'm not sure it stacks up.
It's not unreasonable to say that cancellation rights can't be exercised where downloaded software can be copied or the seller can't verify that it has been deleted.
It's exactly the same reasoning as for music and software CDs which have been unsealed.
Where it falls down is the attempt to justify this for software downloads because the customer "does not receive physical goods".
If you exercise the cancellation right in respect of a sealed CD copy of Aperture then you are entitled to a refund of the whole price... not just the cost of the physical CD-ROM and packaging. The software is clearly treated as goods and not a service.
There is no logical difference between the copy of Aperture which is stored on the CD-ROM and the copy which ends up stored on my hard drive after a Mac App Store download. If the CD-ROM version is a product, then so is the downloaded one.
So can it really be correct to say that by paying my £50 to Apple I am simply paying for the service of providing the download of Aperture?
The Mac App Store is like a petrol pump. When I pay to fill my car up I'm not paying £70 to use the petrol pump... it is simply a mechanism to deliver a product which I am paying for.
I don't ever "own" the copy of Aperture as such as it is a copyright work which is licensed to me to use, but the same is true of a record or a book, each of which are treated as goods under the DSR.
There are cases where providing access to software can be classified as a service. I'm thinking here of cloud SSAS providers like 37 Signals. This is clearly as service and I would expect it to be treated as such under the DSR, but it's not the same as downloading a full copy of a sofware package onto a local machine.
In relation to app store downloads, the definitive factor should be whether the App Store ecosystem lets the seller retain control over copying and use of the app after it is downloaded.
In the case of the Mac App Store, you need to be registered with Apple as having purchased an app in order to download and update it, and this registration can easily be deleted once a refund is given. I don't know if an app can be remotely disabled once it ceases to be registered... and this may be the key point.
If the seller doesn't have this level of control, then it would be unfair to the seller for the cancellation rights to apply (and in my view Regulation 13.1.(c) should apply as the goods "by reason of their nature cannot be returned").
It seems to me that this is actually a better justification for the OFT's position in relation to downloads. They are "goods", but ones that are not capable of being returned.
If the app store system allows the seller to verify that the app can no longer be used then the OFT's guidance unfairly penalises the buyer. The seller wouldn't suffer any loss as a result of the contract being cancelled.
This all comes down to the definition of "capable of being returned". In the Post-PC era, I would argue that this should be defined in a wider sense:- that the seller can be restored to substantially the same economic position as if the software had not been downloaded.
Luckily I'm not going to have to challenge the OFT's guidance I had a pleasant response from Apple agreeing to process the refund (incidentally they don't require you to delete the app, you just can't upgrade or reinstall it).
This doesn't change the fact that the treatment of software downloads under the DSR no longer seems fit for purpose in the App Store world. Maybe it is time this was looked at again?