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We have blogged several times about the somewhat esoteric issue of whether intangible items – chiefly computer software, website algorithms, and other electronic information – is treated as a “product” for purposes of imposing strict liability on their creators.  It’s an interesting topic; Eric recently wrote a paper on it, and Bexis is putting together a “white paper” for the Product Liability Advisory Council on the same subject.  From these exercises we concluded that a 50-state survey on intangibles as “products” for product liability purposes would be both doable and useful.

So far, the would-be liability expanders haven’t done very well.  “Courts have yet to extend products liability theories to bad software, computer viruses, or web sites with inadequate security or defective design.”  James A. Henderson, “Tort vs. Technology:  Accommodating Disruptive Innovation,” 47 Ariz. St. L.J. 1145, 1165 n.135 (Winter 2015) (citation and quotation marks omitted). Even the would-be liability expanders admit it.  “To date, there have been no reported cases holding a software manufacturer strictly liable for defects in the software.”  Michael L. Rustad, “Products Liability for Software Defects in Driverless Cars,” 32 S. Cal. Interdis. L.J. 171, 212 (Fall 2022).

Major reasons for that are the Second and Third Restatements of Torts.  The now-venerable Restatement (Second) of Torts §402A (1965), describes “products” as “chattels” or “articles.”  Restatement §402A, comments a, d-e.  A “chattel” is a “physical object.”  Black’s Law Dictionary, “chattel,” at 251 (rev. 8th ed. 2004) (“Movable or transferable property; personal property; esp[ecially], a physical object capable of manual delivery”).  Likewise, Black’s defines “product” as “[s]omething that is distributed commercially for use or consumption and that is usu[ally] (1) tangible personal property, (2) the result of fabrication or processing, and (3) an item that has passed through a chain of commercial distribution before ultimate use or consumption.”  Id. at 1245.

The Restatement (Third) of Torts, Products Liability (1998), likewise limits the definition of “product” to physical things.  Section 19 of the Third Restatement defines a product as “tangible personal property distributed commercially for use or consumption.”

A product is tangible personal property distributed commercially for use or consumption. Other items, such as real property and electricity, are products when the context of their distribution and use is sufficiently analogous to the distribution and use of tangible personal property.

Restatement (Third) of Torts, Products Liability §19(a) (1998).  On the other hand, “[s]ervices, even when provided commercially, are not products.”  Id. §19(b).  Courts “have, appropriately refused to impose strict product liability” where a plaintiff complains of “the information, not [of] the tangible medium.”  Id. §19, comment d.  “Courts are unanimous in refusing to categorize commercially-provided services as products.”  Id. §19, comment f.  As discussed below, many state product liability statutes and other non-restatement-based product liability authority consider “products” to be limited to tangible things.

As the notes to the Third Restatement discuss, fear of tort liability could chill the expression of intangible ideas, should strict liability attach to information contained in books, newspapers, movies and other publications or forms of public media.  The most widely followed decision recognizing that constitutional concerns keep “products liability law . . . geared to the tangible world” is the Ninth Circuit’s opinion in Winter v. G.P. Putnam’s Sons, 938 F.2d 1033, 1034 (9th Cir. 1991) (applying California law).

We place a high priority on the unfettered exchange of ideas.  We accept the risk that words and ideas have wings we cannot clip and which carry them we know not where.  The threat of liability without fault . . . could seriously inhibit those who wish to share thoughts and theories. . . .  Strict liability principles even when applied to products are not without their costs.  Innovation may be inhibited.  We tolerate these losses. They are much less disturbing than the prospect that we might be deprived of the latest ideas and theories. . . .  Given these considerations, we decline to expand products liability law to embrace the ideas and expression in a book.

Id. at 1035-36 (citations, quotation marks and footnote omitted).  Thus, “Given these considerations, we decline to expand products liability law to embrace the ideas and expression in a book.  Id. at 1037 (footnote omitted).  More of these cases are discussed below.

The sales chapter of the Uniform Commercial Code (“UCC”) defines “goods” – not “products” – as “all things (especially manufactured goods) which are movable at the time of . . . sale.  UCC §2-105(1).  The UCC chapter on leases includes the “movable” language, but excludes “general intangibles.”  UCC §2A-103h.  Most courts exclude “general intangibles”  from being UCC “goods.”  Restatement (Third) of Torts §19, reporters’ notes to comment d, at 278-79.  Amendments to the UCC, have been moving away from intangible as “goods.”  The 2005 revisions to Article 2 from the definition of goods and also defines computer software as “information.”  See UCC §§2-103(1)(m), 2-105(1).  The less widely adopted Uniform Computer & Information Technology Act, §102(a)(35), similarly defines intangible “information” separately from “goods.”

Currently, allegations that electronic data should be considered a “product” are often asserted by plaintiffs seeking to use “product liability” as a smokescreen to evade the broad preemption imposed by the Communications Decency Act, 47 U.S.C. §230(c)(1), that bars liability claims against internet website operators.  These actions have largely failed as strict liability claims but have enjoyed some success as negligence actions.

We’re also discussing In re Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, ___ F. Supp.3d ___, 2023 WL 7524912 (N.D. Cal. Nov. 14, 2023) (“SMAA”), here because while SMAA was ostensibly a state-law decision on product liability issues, neither its reasoning nor its result corresponds to any state’s law.  That, of course, raises serious questions as to whether that court exceeded its authority under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) (see, e.g., 2023 WL 7524912, at *30 n.50), but that issue is not for this post.

SMAA characterized the issue of whether electronic data was a “product” for strict liability purposes – the way every state has analyzed that issue – as an “all or nothing” approach that was “overly simplistic and misguided.”  2023 WL 7524912, at *20-21.  That may or may not be so, but in taking that approach, SMAA distanced itself from all existing state law.

SMAA discussed the Third Restatement and drew three propositions from it:  (1) intangible things can be products when analogized to “‘tangible personal property’ based on ‘the context of [its] distribution and use’”; (2) strict liability can be “imposed in unique circumstances,” mentioning maps and electricity; and (3) “ideas, content, and free expression” cannot support strict liability.  Id. at *23 (quoting Restatement Third §19(a)).  However, when SMAA applied these propositions, analogy and context overwhelmed any “unique circumstances” or legal solicitude for intellectual content.  SMAA treated what it considered some of the relevant precedent – from only two states − in a footnote.  Id. at *24 n.36 (mentioning Jackson (see CA), Quinteros (see WA), Burghart (see WA), Jacobs (see CA), and Ziencik (see CA).  It disregarded them all as having “minimal . . . rationale.”  Id. at *24.  Plaintiffs offered little, if any caselaw, only the argument that the defendants had “transfigure[d] their platforms into ‘products’ simply by using that terminology.  Id.  SMAA then rejected most of plaintiffs’ global arguments:

  • “[T]he Court determines defendants’ platforms are not tangible.”  Id. at *25.
  • “[P]laintiffs have not established as a global matter that defendants’ platforms are akin to tangible personal property such that they are products.”  Id. at *26.
  • “[P]roducts claims focused on the design of digital platforms, as opposed to their content, may be cognizable.”  Id. at *28.  However, SMAA recognized the timing and content of website notices as First Amendment-protected speech.  SMAA, 2023 WL 7524912, at *18.
  • “[T]he Court declines to treat the platforms as products by way of analogy to how the UCC treats some mass-marketed software.”  Id. at *29.

Essentially, defendants won three of the four legal arguments, including the “tangibility” point that both Restatements hold is largely dispositive as to what was a “product” for purposes of strict liability.

That should have been the end of the matter, since (as the rest of this survey will demonstrate) the overwhelming majority of precedent nationwide refuses to accord “product” status to items that are neither “tangible,” “akin to tangible,” or analogous to physical products.  But no, instead of dismissing the actions, SMAA simply made something up – an entirely new theory of liability that even the plaintiffs had not offered:

[T]he Court analyzes whether the various functionalities of defendants’ platforms challenged by plaintiffs are products.  For each, the Court draws on the various considerations outlined above (i.e., whether the functionality is analogizable to tangible personal property or more akin to ideas, content, and free expression) to inform the analysis.  Depending on the functionality at issue, the Court’s analysis may be limited to one consideration; for other defects, multiple considerations may determine the outcome.

SMAA, 2023 WL 7524912, at *29 (emphasis added).  SMAA cited no state-law precedent for creating this “functionality” approach, because there was none. Thus, we discuss the decision here because it doesn’t fit anywhere else.  The only state-law case it cites, Brookes (see FL), is miscited – SMAA repeatedly refers to Brookes as an appellate decision, which is simply wrong.  2023 WL 7524912, at *27, 30.  In fact, Brookes is only an unpublished trial court decision (see FL).

Moreover, the effect of SMAA’s novel focus on “functionality,” rather than tangibility, was a massive expansion of state-law liability.  Given the ingenuity of mankind, inventing any number of devices for performing various functions – from fire axes, to automatic collators, to air conditioning − any limitation of “product” status to “unique circumstances,” id. at *23, disappeared.  All six of the plaintiffs’ defect claims survived:

  • Parental controls and age verification – as analogous to “parental locks” on bottles and televisions.  Id. at *29-30.
  • Limits on screen time – as analogous to “physical timers and alarms.”  Id. at *31.
  • Barriers to account deactivation/deletion – as analogous too … we’re not entirely sure what, but an eraser would make as much sense as anything.  Id. at *31-32.
  • Non-labeling of edited content – as analogous to “filters.”  Id. at *32.
  • Users having access to filters to manipulate content – as analogous to “tools.”  Id. at *32-34.
  • Processes for reporting objectionable material – as analogous to, we guess “system architecture.”  Id. at *34.

As a result of SMAA’s unprecedented – and never adopted by any of the 50 states – elevation of “functionality” over “tangibility” in determining what is a “product” for purposes of strict liability, “plaintiffs adequately plead[ed] the existence of product components as to each alleged defect analyzed.”  Id.

We now proceed to examine the laws of various American jurisdictions.

Federal Law

Several appellate courts have held that intangible items cannot be products under various federal statutes.  Applying federal patent law, ClearCorrect Operating, LLC v. International Trade Commission, 810 F.3d 1283 (Fed. Cir. 2015), held that digital files for 3D printing were not material things as required to invoke the Tariff Act of 1930.  Id. at 1291-93 (construing 19 U.S.C. §1337).  Digital files were not “articles,” which must be “material things.”  Id. at 1291-92.  Since digital files were not “articles” under the statute, the government could not rely on this statute to prevent their importation.  Id. at 1293-94.

Similarly, in United States v. Aleynikov, 676 F.3d 71 (2d Cir. 2012), computer code was not a “product” for purposes of the National Stolen Property Act, 18 U.S.C. §2314 (“NSPA”).  Proprietary computer source code was not a stolen “good” as required by the NSPA.  676 F.3d at 73.  Rather, that statute required “some tangible property must be taken from the owner for there to be deemed a ‘good’ that is ‘stolen’.”  Id. at 77 (citation omitted).

In United States v. Brown, 348 F.3d 1200 (10th Cir. 2003), an Internal Revenue Service regulation, excluded liability for “product” refund, repair or replacement.  26 C.F.R. §1.468B-1(g)(2).  “[I]ntangible” investment securities could not be “products,” 348 F.3d at 1213, as that term is commonly understood:

[T]his provision does not apply here because the word “products,” as used in the provision, refers to tangible goods, not intangibles like investments in securities.  This is one of the common usages of the word.  See, e.g., Restatement (Third) of Torts: Products Liability §19(a) (1998) (“A product is tangible personal property distributed commercially for use or consumption.”); 15 U.S.C. § 2301(1) (Magnuson-Moss Warranty Act) (“The term ‘consumer product’ means any tangible personal property which is distributed in commerce . . .”).

Id.

Similar distinctions are drawn under the Lanham Act.  Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 37 (2003) (“the phrase refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods”).  Thus, only “tangible products,” and not “the intellectual property contained in those goods” allow recovery for “reverse passing off” under the statute.  Kehoe Component Sales Inc. v. Best Lighting Products, Inc., 796 F.3d 576, 587 (6th Cir. 2015) (collecting cases).  The Act “does not impose liability for misrepresenting the intellectual progenitor of a tangible product.”  Id. at 590.  See Ningbo Mizhihe I&E Co. v. Does 1-200, 2020 WL 2086216, at *4 (S.D.N.Y. April 30, 2020) (“[i]mages” and “photographs,  are not “tangible product[s]”); Wright Medical Technology, Inc. v. Paragon 28, Inc., 2019 WL 4751807, at *8 (D. Colo. Sept. 30, 2019) (“a patent application is not a tangible good . . . no[r] a marketing product” under Lanham Act).

Likewise, federal maritime law follows Restatement Third §19(a)’s exclusion of “intangible” items from the definition of “product.”

When analyzing products-liability claims under maritime law, we look to the Restatement of Torts . . . − particularly the most recent Third Restatement − for guidance.  The Third Restatement defines a “product” subject to strict liability as “tangible personal property distributed commercially for use or consumption.”  “[O]nly when the complained-of injury was allegedly caused by a defect in something within this . . . definition of ‘product’ should the defendant manufacturer or seller be strictly liable for the harm caused.”  Injuries caused by other items are actionable only “under negligence, misrepresentation, or some other liability theory.”

McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1173 (9th Cir. 2016) (citations omitted).  Accord Stark v. Armstrong World Industries, Inc., 21 F. Appx. 371, 377 (6th Cir. 2001); Isham v. PADI Worldwide Corp., 2008 WL 11344752, at *2 (D. Haw. April 22, 2008); Isham v. Padi Worldwide Corp., 2007 WL 2460776, at *6 (D. Haw. Aug. 23, 2007).

“Product” as used in the Robinson-Patman Act, also incorporates a tangibility requirement.  “Legislative history reveals only that Congress intended the Act to apply to tangible goods and not services.”  May Dept. Store v. Graphic Process Co., 637 F.2d 1211, 1214 (9th Cir. 1980) (citations omitted).  Accord Innomed Labs., LLC v. Alza Corp., 368 F.3d 148, 155 (2d Cir. 2004) (statute only applies to “tangible products of trade”); Code Rebel, LLC v. Aqua Connect, Inc., 2014 WL 46696, at *5 (C.D. Cal. Jan. 3, 2014) (claim dismissed absent any “facts to support that Defendant’s software includes physical items or is a tangible product”); Windsor Auctions, Inc. v. eBay, Inc., 2008 WL 2622791, at *4 (N.D. Cal. July, 1, 2008) (“provision of a manual for software does not convert the transaction from one for a software service to one for both tangible goods and service”).

The Black’s Law Dictionary definition of “product” has also been employed in the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) context, defining “consumer product,” 15 U.S.C. §2301(1), in pertinent part as “any tangible personal property which is distributed in commerce. . . .”  Uniroyal Chemical Co. v. Deltech Corp., 160 F.3d 238, 255 (5th Cir. 1998) (quoting 1990 edition).

Alabama

Alabama’s product liability statute does not define “product.”  Ala. Code §6-5-521.  In General Motors Corp. v. Johnston, 592 So.2d 1054 (Ala. 1992), a vehicle’s programmable read only memory chip was found “defective,” under the Alabama Extended Manufacturer’s Liability Doctrine (sort of a cross between negligence and strict liability), but the opinion did not discuss whether the chip was a “product.”  Id. at 1056.

More recently, Johnson v. Mossy Oak Properties, Inc., 2012 WL 5932437 (N.D. Ala. Nov. 27, 2012), limited the undefined term “product” in an Alabama sales commission statute to tangible things, excluding franchise rights.  Id. at *6 (“the term ‘product’ refers only to tangible goods”).

Alaska

Alaska does not have a general product liability statute, but it does have a statute of repose that defines “product” as “an object that has intrinsic value, is capable of delivery . . ., and is introduced into trade or commerce.”  Alaska Stat. §09.10.055(b)(1)(E).  “[T]his definition refers to the tangible thing that causes an injury.”  Jones v. Bowie Industries, Inc., 282 P.3d 316, 338 (Alaska 2012).

Munhoven v. Northwind Marine, Inc., 353 F. Supp.2d 1072 (D. Alaska 2005), predicted that Alaska would follow the Third Restatement “defin[ition] of a product as ‘tangible personal property distributed commercially for use or consumption.”  Id. at 1074 (quoting Restatement Third §19(a)).

Arizona

Arizona’s product liability statute defines “product” tautologically.  “’Product’ means the individual product or any component part of the product that is the subject of a product liability action.”  Ariz. Rev. Stat. §12-681.  “[S]trict liability in tort can be invoked only if the [item] is a product as defined either by the Restatement, legislation, or caselaw.”  Menendez v. Paddock Pool Construction Co., 836 P.2d 968, 972 (Ariz. App. 1991).  “Absent Arizona law to the contrary, this court will usually apply the law of the Restatement.”  Watts v. Medicis Pharmaceutical Corp., 365 P.3d 944, 949 (Ariz. 2016) (citation and quotation marks omitted).  We have found nothing in Arizona law addressing whether an intangible, such as electronic data, can be considered a “product” for product liability purposes.  Given Restatement Third §19(a), under Menendez the answer would seem to be “no.”

Arkansas

The Arkansas product liability statute defines a “[p]roduct” as “any tangible object.”  Ark. Code §16-116-202(4).  See Elk Corp. of Arkansas v. Jackson, 725 S.W.2d 829, 831 (Ark. 1987) (quoting definition).  Other Arkansas statutes describe “tangible objects” as things that can be held, seized, transported or otherwise moved.  See Ark. Code §§17-14-103(15); 25-15-208(a)(3)(D); 20-77-904(a) (other statutes defining “tangible” things).  Engelhardt v. Rogers Group, Inc., 132 F. Supp.2d 757, 759 & n.7 (E.D. Ark. 2001), relied on these other statutes to hold that a road could not be a “product”).

In Gilmer v. Buena Vista Home Video, Inc., 939 F. Supp. 665 (W.D. Ark. 1996), an express warranty claim based on home videos being “suitable for viewing by children” survived a motion to dismiss despite plaintiff alleging “offensive” content rather than anything concerning the “tangible properties” of the videos.  Id. at 671.

California

A “product” in California is “a physical article which results from a manufacturing process and is ultimately delivered to a consumer.”  Pierson v. Sharp Memorial Hospital, 264 Cal. Rptr. 673, 676 (Cal. App. 1989).  As the home of much of the tech industry, California has seen more than its share of claims about intangible information being a product – most notably the Ninth Circuit’s landmark Winter decision, which explained:

A book containing Shakespeare’s sonnets consists of two parts, the material and print therein, and the ideas and expression thereof.  The first may be a product, but the second is not.  The latter, were Shakespeare alive, would be governed by copyright laws; the laws of libel, to the extent consistent with the First Amendment; and the laws of misrepresentation, negligent misrepresentation, negligence, and mistake.  These doctrines applicable to the second part are aimed at the delicate issues that arise with respect to intangibles such as ideas and expression.  Products liability law is geared to the tangible world.

938 F.2d at 1034 (applying California law).  Accord Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1110 (9th Cir. 2003) (publisher of the Diagnostic and Statistical Manual of Mental Disorders entitled to anti-SLAPP, First Amendment-based dismissal of failure to warn claim); Sinai v. Mitchell Books, 1993 WL 220260, at *1 (9th Cir. 1993) (California law does not recognize a claim for “negligent publishing”) (in table at 996 F.2d 1227).

Lemmon v. Snap, Inc., 995 F.3d 1085 (9th Cir. 2021) (applying California law), is a §230 preemption case.  Plaintiffs brought “a cause of action for negligent design − a common products liability tort,” against an internet website.  Id. at 1092.  Lemmon found that that the alleged negligence duty escaped preemption by §230 because it arose from the defendant’s “distinct capacity as a product designer,” which had “nothing to do with” its “editing, monitoring, or removing of the content that its users generate.”  Id.  Lemmon was based “entirely on the CDA [Communications Decency Act],” id. at 1095, and did not address any common-law issues, such as whether a website could be a “product” in either negligence or strict liability under Winter and other California common-law precedent.

Ample California precedent rejects product liability theories brought against intangible information of the sort at issue in Lemmon.  “A product is a physical article which results from a manufacturing process and is ultimately delivered to a consumer.”  Pierson v. Sharp Memorial Hospital, Inc., 264 Cal. Rptr. 673, 676 (Cal. App. 1989).  See also Green v. ADT, LLC, 2016 WL 3208483, at *3 (N.D. Cal. June 10, 2016); GCube Insurance Services., Inc. v. Lindsay Corp., 2014 WL 1247768, at *3 (E.D. Cal. March 25, 2014); Torres v. City of Madera, 2005 WL 1683736, at *13 (E.D. Cal. July 11, 2005), aff’d, 277 F. Appx. 684 (9th Cir. 2008) (all quoting and following Pierson definition of product).  See also Polanco v. East Chicago Machine Tool Corp., 2012 WL 12886210, at *3 (C.D. Cal. Sept. 18, 2012) (using Black’s Law Dictionary definition of “product” as “tangible personal property”); ABM Industries, Inc. v. Zurich American Insurance Co., 2006 WL 2595944, at *23 (N.D. Cal. Sept. 11, 2006) (same), aff’d in pertinent part, 291 F. Appx. 800, 802 (9th Cir. 2008).

California appellate courts have also relied on the definition of “product” in Restatement Third §19(a), and limited product-related claims to “tangible” items.  Johnson v. United States Steel Corp., 192 Cal. Rptr.3d 158, 165 (Cal. App. 2015), review denied (Cal. Sept. 22, 2015) (“A ‘product’ is broadly defined to include any ‘tangible personal property distributed commercially for use or consumption.’”) (quoting §19(a)); Cryolife, Inc. v. Superior Court, 2 Cal. Rptr.3d 396, 404-05 & n.8 (Cal. App. 2003), review denied (Cal. Oct 22, 2003) (§19(a) “product” definition quoted in footnote “consistent” with “general policy throughout the nation”).  However, none of the above cases involved attempts to impose strict liability on an intangible item.  See Jacobs v. Meta Platforms, Inc., 2023 WL 2655586, at *3 (Cal. Super. March 10, 2023) (quoting relevant §19(a) language); Flores v. Uber Technologies, 2022 Cal. Super. Lexis 9648, at *6 (Cal. Super. March 22, 2022) (same); Shaff v. Farmers New World Life Insurance Co., 2017 WL 5643173, at *3 (C.D. Cal. Oct. 23, 2017) (same); Pankey v. Petco Animal Supplies, Inc., 2017 WL 696425, at *3 (Cal. Super. Jan. 24, 2017) (same).  Cf. Hardin v. PDX, Inc., 173 Cal. Rptr.3d 397, 407 (Cal. App. 2014) (plaintiff’s “theory is that [defendant’s] software program . . . is the defective product.  [Defendant] has not argued, let alone shown, that [plaintiff] cannot prevail under that theory.  Maybe so. . . .”), review denied (Cal. Sept. 24, 2014).

The “allegedly manipulative features of those interactive media” were held not to be “products,” precluding imposition of strict liability, in Coordinated Proceeding Special Title (Rule 3.550) Social Media Cases, 2023 WL 6847378, at *1 (Cal. Super. Oct. 13, 2023).  Social Media Cases followed the Second and Third Restatements of Torts in holding that “products” had to be “tangible” things.  Electronic algorithms are neither “tangible; one cannot reach out and touch them,” “[n]or are Defendants’ platforms analogous to tangible personal property.”  Id. at *15.

[T]he ways in which the social media sites are alleged to interact with minors are not bugs;” they are “features” built into the social media experience by Defendants.  The interactions between Defendants and Plaintiffs by way of the Defendants’ platforms are not analogous to the distribution and use of tangible personal property.  They do not present challenges that the common law overcame by creating product liability doctrine.

Id. at *16 (quotation marks and footnote omitted).

Jane Doe No. 1 v. Uber Technologies, Inc., mentioned with approval an unappealed trial court ruling that, as to “strict liability,” a cellphone “app was not a product, and thus a products liability theory of recovery was not legally viable.”  294 Cal. Rptr.3d 664, 671 (Cal. App. 2022).  In Doe the Superior Court had relied on Restatement Third §19(a):

There is no legislation or case law to support plaintiffs’ position [that a cellphone app] is a product].  The Restatement (Third) of Torts is similarly unhelpful to plaintiffs.  It states that “(a) A product is tangible personal property. . . .  (b) Services, even when provided commercially, are not products. . . .  None of these definitions of product covers the Uber App.  The . . . App is not tangible personal property and it is not akin to real property and electricity that, in the context of its distribution and use, it is analogous to the use and distribution of tangible personal property.

*          *          *          *

[T]he [cellphone app] is for the provision of a service. . . .  As a condition precedent to maintaining a strict products liability claim, a plaintiff must show [that] . . . the transaction’s primary objective was to acquire ownership or use of a product, and not one where the primary objective was to obtain a service. . . .  By plaintiffs’ own allegations, the . . . App was used to gain a service: a ride.  Plaintiffs were not acquiring ownership in the car they reserved or going to use the car.  They were being driven from one location to another by the person who owned the car.  That is a service.  There is no need to reach the remaining arguments because there is no product.

Doe v. Uber Technologies, Inc., 2020 WL 13801354, at *6-7 (Cal. Super. Nov. 30, 2020) (citations and quotation marks omitted), aff’d on other grounds, 294 Cal. Rptr.3d 664 (Cal. App. 2022), review denied (Cal. Aug. 24, 2022).  Accord Behuet v. Uber, 2022 WL 2031868, at *2 (Cal. Super. July 13, 2022) (similar language).

A social media platform is “more akin to a service than a product.”  Jacobs, 2023 WL 2655586, at *4.  Estate of B.H. v. Netflix, Inc., 2022 WL 551701 (N.D. Cal. Jan. 12, 2022), dismissed a product liability suit over an online streaming service:

[P]laintiffs’ strict liability claim fails because it is premised on the content and dissemination of the show.  There is no strict liability for books, movies, or other forms of media.  Again, plaintiffs’ efforts to distance the claims from the content of the show do not persuade.  Without the content, there would be no claim.

Id. at *3 (Winter citation omitted).  See Id. at *3-4 (similar analysis dismissing negligence claims).

Federal courts applying California law have reached similar conclusions, dismissing a variety of product liability claims against the contents of electronic data in various forms.  “[C]ourts have rejected the idea that non-tangible objects like apps can be ‘products.’”  Ziencik v. Snap, Inc., 2023 WL 2638314, at *4 (C.D. Cal. Feb. 3, 2023).  Jackson v. Airbnb, Inc., 639 F. Supp.3d 994, 2022 WL 16752071 (C.D. Cal. Nov. 4, 2022), rejected a claim that an online rental marketplace could be a “product” for strict liability purposes.  “A products liability claimant . . . must show that the object or instrumentality claimed to be defective was in fact a ‘product.’”  Id. at 1010 (citation and quotation marks omitted).  Utilizing the Third Restatement definition of product as “tangible personal property,” Jackson held that “Airbnb is a platform that connects users; it is more akin to a service than to a product.”  Id. at 1101.  Jackson recognized that the Lemmon decision was not on point, as “there the circuit addressed only whether [a website] was immune to liability under the Communications Decency Act,” and “declined to address whether there was a failure to plead a negligent design claim.”  Id.  Cf. Simulados Software, Ltd. v. Photon Infotech Private, Ltd., 40 F. Supp.3d 1191, 1202 (N.D. Cal. 2014) (customization of existing software not a UCC good); Systems America, Inc. v. Rockwell Software, Inc., 2007 WL 218242, at *4 (N.D. Cal. Jan. 26, 2007) (bespoke software not a UCC good).

Analogously, Merritt v. Countrywide Financial Corp., 2015 WL 5542992, at *22 (N.D. Cal. Sept. 17, 2015), aff’d, 783 F. Appx. 717 (9th Cir. 2019), precluded assertion of strict liability in litigation over a bank loan.  Financial transactions involved nothing physical that could properly be called “products”:

[S]trict liability extends only to tangible goods − not intangible goods or services.  While strict liability’s reach has expanded over time, California courts continue to require a link to a physical good when finding such liability.  Because no physical product is at issue here, Plaintiffs’ [strict liability] fail as a matter law.

Id. at *22 (citations omitted).  Accord Crouch v. Ruby Corp., 2022 WL 16747282, at *9 (S.D. Cal. Nov. 7, 2022) (“Defendants do not sell products on their website, they sell a service”); Holland v. TD Ameritrade, Inc., 2012 WL 592042, at *6 (Mag. E.D. Cal. Feb. 22, 2012) (“The ‘product’ at issue in this case is an intangible ‘good’ and service, and the loss at issue is solely financial.  Strict products liability, under California law, applies only to products not services.”), adopted, 2012 WL 13046349 (E.D. Cal. March 21, 2012); Trishan Air, Inc. v. Dassault Falcon Jet Corp., 2011 WL 13186258, at *2 (C.D. Cal. May 17, 2011) (flight simulator and associated training materials were not products subject to strict liability); Heindl v. Martinelli, 2012 WL 10786641, at *1 (Cal. Super. April. 10, 2012) (“strict products liability has always required a tangible product that the defendant assisting in placing into the commercial chain of distribution and/or stream of commerce”).

Winter’s rationale for rejecting strict product liability against intangible ideas is also applicable to negligence claims in California.  See McCollum v. Columbia Broadcasting Systems, Inc., 249 Cal. Rptr. 187, 197 (Cal. App. 1988) (“it is simply not acceptable to a free and democratic society to impose a duty upon performing artists to limit and restrict their creativity in order to avoid the dissemination of ideas in artistic speech which may adversely affect emotionally troubled individuals”), review denied (Cal. Oct. 12, 1988); Walters v. Seventeen Magazine, 241 Cal. Rptr. 101, 102-03 (Cal. App. 1987) (“we are loathe to create a new tort of negligently failing to investigate the safety of an advertised product”); Bill v. Superior Court, 187 Cal. Rptr. 625, 629 (Cal. App. 1982) (“First Amendment considerations are as applicable” to negligence claim against allegedly violence-inducing movie “as where liability is sought to be imposed directly for the failure to warn”); Olivia N. v. National Broadcasting Co., 178 Cal. Rptr. 888, 892 (Cal. App. 1981) (“television networks would become significantly more inhibited in the selection of controversial materials if liability were to be imposed on a simple negligence theory”), review denied (Cal. Feb. 2, 1982); Stutzman v. Armstrong, 2013 WL 4853333, at *20-21 (E.D. Cal. Sept. 10, 2013) (free speech considerations precluded negligent misrepresentation suit over contents of a book); E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc., 444 F. Supp.2d 1012, 1039 (C.D. Cal. 2006) (video game “clearly qualifies as an ‘artistic work’ entitled to First Amendment protection”).

Under Winter, moreover, “Courts commonly distinguish between the expressive content of movies and other intellectual property with the tangible media that conveys that content, finding that only the tangible products are subject to product liability regulations.”  Anthony v. Buena Vista Home Entertainment Inc., 2016 WL 6836950, at *4 (C.D. Cal. Sept. 28, 2016) (Winter citation omitted).

[C]ourts have distinguished between the expressive content of intellectual property and the physical product that conveys that content, and have found that only the physical products are subject to product liability law.  The music and song lyrics in question in this case are clearly part of the expressive content of the movie or show.  They are a part of the story depicted in the movie or show; there is no way to characterize them as an aspect of the physical item, such as the DVD itself.

Id. at *4 (Winter citation omitted).  Accord Woulfe v. Universal City Studios LLC, 2022 WL 18216089, at *16 (C.D. Cal. Dec. 20, 2022) (quoting Anthony), reconsideration denied, 2023 WL 3321752 (C.D. Cal. March 9, 2023).

Dyroff v. Ultimate Software Group, Inc., 934 F.3d 1093, 1101 (9th Cir. 2019), similarly held that a website designer owed no duty under California negligence, because the defendant’s “content-neutral functions . . . did not create a risk of harm.”  Id. at 1101.

[The designer] did not make [plaintiff], worse off because the functions Plaintiff references − recommendations and notifications − were used regardless of the groups in which a user participated.  No website could function if a duty of care was created when a website facilitates communication, in a content-neutral fashion, of its users’ content.  We decline to create such a relationship.

Id. (citation omitted).  See also Ginsberg v. Google Inc., 586 F. Supp.3d 998, 1009 (N.D. Cal. 2022) (following Dryoff; no negligence duty to remove a cellphone app. due to possible third-party misuse); Langley v. Guiding Hands School, Inc., 2021 WL 1212713, at *14 (E.D. Cal. March 31, 2021) (“negligent product liability” claim dismissed against a “service” – “training . . . on restraint techniques”).

Social Media Cases allowed a negligence claim concerning “the way that Defendants manage their property,” particularly how “Defendants designed and operated their platforms.”  2023 WL 6847378, at *23. 

Plaintiffs are the persons who were directly affected by Defendants’ conduct; they are not mere bystanders. . . .  Although Defendants designed social media platforms that interacted with Plaintiffs’ minds rather than products that injured Plaintiffs’ bodies, the allegations of the Master Complaint (if proved) demonstrate that the adverse effect on Plaintiffs was foreseeable and substantial.

Id. at *16 (quotation marks and footnote omitted).  Nor did Winter First Amendment considerations bar the claims.  Since, the claims “can be read to state that [they] are based on the fact that the design features of the platforms − and not the specific content viewed by Plaintiffs − caused Plaintiffs’ harms,”  they survived a motion to dismiss.  Id. at *39. But cf. NetChoice, LLC v. Bonta, ___ F. Supp.3d ___, 2023 WL 6135551, at *13 (N.D. Cal. Sept. 18, 2023) (holding California statute targeting similar design features for similar reasons, unconstitutional as a First Amendment violation).

Finally, also in a negligence case, Modisette v. Apple, Inc., 241 Cal. Rptr.3d 209, 217-19 (Cal. App. 2018), rejected a purported duty to modify an electronic product component to disable product use while the user was driving.  Third-party misuse of the defendant’s products was an “attenuated” causal link between the plaintiff’s injuries and the defendant’s conduct.  Id. at 219-20.  Liability on that basis was contrary to public policy:

[Plaintiffs’] complaint alleges a duty that, at its core, may preclude cellular-phone manufacturers from allowing the use of phones while driving, notwithstanding California law that expressly permits such uses under certain circumstances. . . .  [W]e are not persuaded that California law imposes a duty on the manufacturer of a cell phone to design it in such a manner that a user is incapable of using it while driving.  Given the complex public policy considerations involved in such a calculus, and the potentially sweeping implications of finding a duty by [defendant], we conclude that policy considerations dictate finding as a matter of law an exception to the general duty of care.

Id. at 221-22 (citations omitted).  Given the intervening wrongful conduct of the product user, “the gap between [defendant’s] design of the [product] and the [plaintiffs’] injuries is too great for the tort system to hold [defendant] responsible.”  Id. at 226.

Colorado

Colorado’s products liability statute does not define the term “product.”  See Colo. Rev. Stat. §13-21-401.  In Colorado, electricity “is not a ‘product’ that has been ‘sold’” “until it passes through a customer’s meter.”  Smith v. Home Light & Power Co., 734 P.2d 1051, 1055 (Colo. 1987).  A federal court predicting Colorado law held that navigational charts made by “mass production” could be Restatement §402A “products” under Colorado law, although “data supplied under individually-tailored service arrangements” was not.  Saloomey v. Jeppesen & Co., 707 F.2d 671, 677 (2d Cir. 1983) (applying Colorado law).  More recent Colorado precedent has not expanded this definition further.

Applying Colorado law and following Restatement Third §19(a), Sanders v. Acclaim Entertainment, Inc., 188 F. Supp.2d 1264 (D. Colo. 2002), held that a videogame could not be a “product” for strict liability purposes.  “[I]n considering whether to recognize a new tort recovery theory, the Colorado courts give great weight to the theory’s impact on free expression.”  Id. at 1277 (citation omitted).  Colorado law thus recognizes a “critical distinction between intangible properties and tangible properties for which strict liability can be imposed.”  Id. at 1278

I predict that the Colorado Supreme Court, as it has often done in the past, will selectively adopt relevant sections in the Restatement (Third) of Torts.  There, the word “product” is defined and a distinction is made between tangible and intangible properties. . . .  [C]ourts have, appropriately refused to impose strict product liability in cases where the plaintiff’s grievances were with the information, not with the tangible medium.  Based on th[is] persuasive reasoning . . ., I hold that intangible thoughts, ideas, and expressive content are not “products” as contemplated by the strict liability doctrine.

Id. at 1278-79 (citations and quotation marks omitted).

A defendant allegedly responsible for the “design” of an automotive electronic stability control system and for the “integration” of sensors made by others could not be strictly liable under Colorado law in Pertile v. General Motors, LLC, 2017 WL 4117908, at *9 (D. Colo. Sept. 15, 2017).  That a faulty sensor was “communicating unreliable data to the [defendant’s] control module” was not a “defect in any ‘integration,’ or ‘interface’ for which [defendant] may have had responsibility.”  Id.

In Colorado there is also no negligence duty owed by book authors and other information providers.  Bailey v. Huggins Diagnostic & Rehabilitation Center, Inc., 952 P.2d 768, 773 (Colo. App. 1997) (imposing liability on an authors and television personalities would impermissibly expose authors “to the risk of multiple claims for personal injuries”).  Id. at 773.  “[T]he social utility of encouraging authors to address issues of public concern, and the magnitude of the burden that would be imposed upon them if a duty of care were recognized, far outweigh the private interest of any individual reader.”  Id.

Connecticut

Connecticut’s products liability statute does not define the term “product.”  See Conn. Gen. Stat. §52-572m.  In the context of computer games, Wilson v. Midway Games, Inc., 198 F. Supp.2d 167 (D. Conn. 2002), held that Connecticut law would follow the definition of “product” as “tangible personal property distributed commercially for use or consumption.”  Id. at 173 (quoting Restatement Third §19(a)).  Wilson found “analogous” precedent rejecting strict liability for both publications – “instruction manuals, cookbooks, navigational charts and similar materials” – and “media speech” – the “thoughts, images, ideas, and messages contained in movies and video games.”  Id. (collecting cases).  Wilson rejected the argument that the “sophisticated technology” and “interactive nature” of “virtual reality” could be considered a “product” for strict liability purposes.  Id. at 173-74.

While [plaintiff] has skillfully argued that [the game] is something more than motion pictures or television programs, the “something more” is its interactivity.  She offers no persuasive reason for distinguishing the technological advances that led to [its] creation from developments . . . that ushered in the motion picture.  The pictoral representation that evokes the viewer’s response is the essence of the claimed “product,” . . . whether that representation is viewed passively, as in a motion picture, or is controlled by the viewer.  [Defendant’s game] is not sufficiently different in kind to fall outside the “intangible” category that is demarcated in the case law.

Id. at 174.  Moreover, the First Amendment precluded “an interactive video story depiction in game form” from being subjected to state-law tort liability.  Id. at 182. More recently, product liability claims against the operators of several social media websites were dismissed, in part, because the allegations could not possibly sound in product liability case since “there is no allegation here that [plaintiff] actually purchased any product from the defendants.” V.V. v. Meta Platforms, Inc., 2024 WL 678248, at *11 (Conn. Super. Feb. 16, 2024).

Likewise, L. Cohen & Co. v. Dun & Bradstreet, Inc., 629 F. Supp. 1425 (D. Conn. 1986), held that Connecticut’s product liability statute “did not contemplate that publications would be characterized as ‘products.’”  Id. at 1430.  See also Clemmons v. Connecticut Light & Power Co., 2023 WL 2986797, at *5 (Conn. Super. April 14, 2023); Nazar v. Palli, 2013 WL 1867072, at *4 (Conn. Super. April 15, 2013); Tofolowsky v. Bilow, 2003 WL 1475141, at *4 (Conn. Super. March 17, 2003); and Travelers Property & Casualty Insurance Corp. v. Yankee Gas Services Co., 2000 WL 775558, at *4 (Conn. Super. May 19, 2000) (all applying the requirement of a tangible product in Connecticut product liability litigation not involving electronic information).  Cf. State v. Maximus, Inc., 2009 WL 1142570, at *8 (Conn. Super. April 1, 2009) (contract to revise and encrypt plaintiff’s existing software did not involve a UCC good); Bobryk v. Lincoln Amusements, Inc., 1996 WL 24566, at *4 (Conn. Super. Jan. 5, 1996) (“a ticket to ride” a physical object was not itself a “product”).

Delaware

The Delaware product liability statute defines “[p]roduct” as “any tangible article.”  Del. Code tit. 18 §7001.  In Gresham v. Ocwen Loan Servicing, LLC, 2018 WL 6599901, at *5 (D. Del. Dec. 17, 2018), the court held that a mortgage “is not tangible personal property” as required by the Magnuson Moss Act.  Id. at *5.

There are no Delaware cases addressing whether an intangible, such as electronic data, can be considered a “product” for product liability purposes, probably due to the above language of the Delaware statute.

District of Columbia

Secondarily to holding the plaintiff’s case preempted under §230, Klayman v. Zuckerberg, 753 F.3d 1354 (D.C. Cir. 2014), held that no “special relationship” between an online social media site and its users that could support a negligence claim under District of Columbia law.  Id. at 1359-60.  Other than that, we have found no District of Columbia decisions addressing whether an intangible, such as electronic data, can be considered a “product” for product liability purposes.

Florida

Florida’s limited product liability legislation does not define “product.”  Fla. Stat. §§768.1256-768.1257.  Coral Cadillac, Inc. v. Stephens, 867 So.2d 556, 559 (Fla. App. 2004), followed the Black’s Law Dictionary definition of “product” as “[a]ny tangible personal property which is distributed in commerce.”  Id. at 559.  Based on that definition, Coral Cadillac held that the plaintiff’s case was within the scope of a punitive damages statute applying to, inter alia, “negligence, strict liability, [and] products liability.”  Id. at 557 (quoting Fla. Stat. §768.73).

Another Florida appellate court, in Cardozo v. True, 342 So.2d 1053, 1056 (Fla. App. 1977), rejected allegations that booksellers impliedly warranted the contents of the books they sold.  While a book could be a “good” under the Uniform Commercial Code, any warranty extended only to “the tangible, physical properties” – the “printing and binding of books.”  Id. at 1056.  It was:

necessary to distinguish between the tangible properties of these goods and the thoughts and ideas conveyed thereby. . . .  It is unthinkable that standards imposed on the quality of goods sold by a merchant would require that merchant, who is a book seller, to evaluate the thought processes of the many authors and publishers of the hundreds and often thousands of books which the merchant offers for sale.

Id.  “[I]deas hold a privileged position in our society.  They are not equivalent to commercial products.”  Id.  Distributing ideas is an “essential function,” and to impose liability “regardless of fault, when an injury results would severely restrict the flow of the ideas they distribute.”  Id. at 1057.

In Gorran v. Atkins Nutritionals, Inc., 464 F. Supp.2d 315, 324 (S.D.N.Y. 2006), aff’d, 279 F. Appx. 40 (2d Cir. 2008), the court, applying Florida law, followed Cardozo and refused to apply strict liability to the ideas expressed in a book, because “the Book is not a ‘product.’”  Id. at 324.  Instead of concepts, [p]roducts liability law focuses on the tangible world.”  Id. (following Restatement Third §19(a)).  “[B]ecause the intangible expressions contained in the Book are not products, [plaintiff’s] products liability claim, to the extent it is based on the Book, also fails.”  Id. at 325.  Likewise, “general advice” on the defendant’s website could not be the basis of liability.  Id. at 328.

Other cases refusing to impose tort liability under Florida law for the dissemination of information are:  First Equity Corp. v. Standard & Poor’s Corp., 869 F.2d 175, 179-80 (2d Cir. 1989) (publisher not liable for alleged negligent misstatements in investment guide) (applying Florida law); Brandt v. Weather Channel, Inc., 42 F. Supp.2d 1344, 1346 (S.D. Fla.) (refusing “to impose on a television broadcaster of weather forecasts a general duty to viewers who watch a forecast and take action in reliance on that forecast”), aff’d mem., 204 F.3d 1123 (11th Cir. 1999)); Zamora v. Columbia Broadcasting Systems, 480 F. Supp. 199, 202 (S.D. Fla. 1979) (suit against television broadcaster for “violent” programming has “no valid basis and would be against public policy”).

A Florida trial court, in Brookes v. Lyft Inc., 2022 WL 19799628 (Fla. Cir. Sept. 20, 2020), cited general “public policy” and finding “no generally accepted definition of ‘product’” – but no on-point Florida authority – to hold that a ride-sharing application could be a “product.”  Id. at *3-4.

[Defendant] is the designer and distributor of the application. . . .  [It] should be responsible for any harm caused by its digital application in the same way the designer of any defective physical product is held accountable. . . .  The definition of “product” should be fluid to accommodate developments in technology and is not susceptible to a “crabbed” definition.  Decisions regarding what constitutes a “product” are reached in light of public policy behind the imposition of strict product liability.

Id. at *3.  We looked, but found no subsequent cases following, or even citing, Brookes.

Georgia

Georgia’s product liability statute does not base liability on a “product,” but rather on “personal property sold as new property.”  Ga. Code §51-1-11(b)(1).  “[A] manufacturer may owe a design duty under Georgia’s product-liability statute or under this State’s decisional law.”  Maynard v. Snapchat, Inc., 870 S.E.2d 739, 745 (Ga. 2022).  The plaintiffs in Maynard “pursued only a negligence theory,” but “the same test [“risk-utility analysis”] is used to assess breach of the manufacturer’s design duty.”  Id. at 746.  Plaintiffs’ “decisional-law negligence claims” “adequately alleged at the motion-to-dismiss stage that [a website owed . . . a design duty with respect to the particular risk of harm.”  Id. at 746-47.

[W]e cannot say as a matter of law at the motion-to-dismiss stage that [plaintiffs] could not introduce evidence that, when designing [its website software], [defendant] could reasonably foresee that the product’s design created a risk . . . like the one at issue here, triggering a duty for [defendant] to use reasonable care in designing the product in light of that risk.

Id. at 747-48 (citation omitted).  Maynard also rejected a “blanket intentional-misuse exception to a manufacturer’s design duty.”  Id. at 748.

Although describing the plaintiffs’ claims as “a conventional design-defect claim based on the ordinary design duty recognized under our decisional law,” id. at 750, at no point did Maynard address whether the software, as such, could be a “product.”  The status of intangible computer code as a “product” for purpose of negligence (strict liability not being alleged) seems not to have been before the court in Maynard.  Two Georgia law product liability cases that expressly addressed this issue, before Maynard, found no “product,” and therefore no liability.  Silverpop Systems, Inc. v. Leading Market Technologies, Inc., 641 F. Appx. 849, 854 (11th Cir. 2016) (applying Georgia law), held that digital marketing software was “a service and not a product.”  Id. at 854.  Murray v. ILG Technologies, LLC, 378 F. Supp.3d 1227 (S.D. Ga. 2019), aff’d, 798 F. Appx. 486 (11th Cir. 2020), followed Silverpop and held that the defendant’s allegedly malfunctioning software, which erroneously informed plaintiffs that they had flunked the bar exam, could not be considered a “product.”  Like Silverpop,

[I]t is unlikely Plaintiffs could establish that their products liability claims involve a “product”. . . .  Silverpop . . . stated, “the parties’ agreement encompassed a service and not a product.”  Here, Defendants similarly contracted to provide a service and not a product.

Id. at 1249 (citations omitted).

The Georgia Supreme Court has also rejected publisher strict liability.  In Walt Disney Productions, Inc. v. Shannon, 276 S.E.2d 580, 583 (Ga. 1981), the Georgia Supreme Court had refused to “open the Pandora’s box” to impose liability for the content of television programming, as such liability would “have a seriously chilling effect on the flow of protected speech through society’s mediums of communication.”  Id. at 583

Hawai’i

The Hawai’i Supreme Court, in Birmingham v. Fodor’s Travel Publications, Inc., 833 P.2d 70 (Haw. 1992), found Winter “persuasive” and held that a the “ideas and expression” in a travel guide “is not a ‘product,’” and that the plaintiffs “ha[d] no claim for relief based on strict/product liability.”  Id. at 78-79.  Radford v. Wells Fargo Bank, 2011 WL 1833020 (D. Haw. May 13, 2011), applied Birmingham to hold that financial transactions were not “products” to which strict liability could apply.  Id. at *16 (because “[t]he language of products liability law reflects its focus on tangible items,” “[t]his court does not read Hawaii law as recognizing a mortgage loan as a product subject to products liability law.”).  Cf. Kaneko v. Hilo Coast Processing, 654 P.2d 343, 347 (Haw. 1982) (pointing out that Restatement §402A “and its comments leave undefined the term ‘product’”).

Idaho

In Idaho, the product liability statute defines a “[p]roduct” as “any object possessing intrinsic value” and “capable of delivery.”  Idaho Code §6-1402(3).  While, we have found nothing in Idaho law addressing whether an intangible, such as electronic data, can be considered a “product” for product liability purposes, the definition in the Idaho statute is identical to that used in Washington state.

Illinois

The accepted definition of “product” in Illinois appears limited to tangible things.  An Illinois product liability statute of repose, declared unconstitutional solely on severability grounds, defined a “product” as “any tangible object or goods distributed in commerce.”  735 Ill. Comp. Stat. §5/13-213(a)(2); see Best v. Taylor Machine Works, 689 N.E.2d 1057, 1105 (Ill. 1997) (severability discussion).  An Illinois court referenced this definition in Gomez v. Arkema, Inc., 2014 WL 983198, at *4 (N.D. Ill. March 12, 2014).

“Product,” in an analogous Illinois statute, not as closely related to product liability (involving sales commissions), likewise has been repeatedly limited to sales of tangible items.  English Co. v. Northwest Envirocon, Inc., 663 N.E.2d 448, 454 (Ill. App. 1996) (“product” refers “only to purveyors of tangible goods”); Tenan v. StrategIQ Commerce, LLC, 364 F. Supp.3d 910, 920 (N.D. Ill. 2019) (“product” as used in statute “applies only to the sale of tangible goods”); Springhead, LLC v. Solution Publishing, LLC, 2015 WL 1280702, at *3 (N.D. Ill. March 18, 2015) (“‘product’ . . . refers to ‘tangible, manufactured goods, not [to] intangible items or services’”) (quoting Kenebrew v. Connecticut General Life Insurance Co., 882 F. Supp. 749, 754 (N.D. Ill. 1995)) (collecting other cases).

In Vesely v. Armslist LLC, 762 F.3d 661 (7th Cir. 2014), a website that created an online marketplace for firearms by accepting third-party advertisements defeated an Illinois negligence action brought by a victim of a criminal firearms purchaser.  Absent a “special relationship,” “public policy” arguments that the website’s “negligent behavior facilitate[d]” sales to criminals failed.  Id. at 665. 

[Plaintiff alleged] that [defendant] designed its website to encourage its users to circumvent existing gun laws. . . .  But simply enabling consumers to use a legal service is far removed from encouraging them to commit an illegal act.  [Defendant] permitted [someone] to place an advertisement on its website and nothing more.

Id. at 666 (citations and quotation marks omitted).  Similarly Doe v. GTE Corp., 347 F.3d 655, 661-62 (7th Cir. 2003) (applying Illinois law), affirmed that a web host was not liable for not discovering and terminating an internet bad actor:

[Defendant’s web hosting services are put to lawful use by the great majority of its customers.  For the same reason, plaintiffs’ invocation of nuisance law gets them nowhere; the ability to misuse a service that provides substantial benefits to the great majority of its customers does not turn that service into a “public nuisance.”

Id. at 661-21 (parenthetical omitted).

Also, in Alm v. Van Nostrand Reinhold Co., 480 N.E.2d 1263, 1266-67 (Ill. App. 1985), a book publisher defeated a negligent misrepresentation claim.

We conclude that no cause of action for negligent misrepresentation should be recognized under the facts of this case.  Plaintiff’s theory, if adopted, would place upon publishers the duty of scrutinizing and even testing all procedures contained in any of their publications.  The scope of liability would extend to an undeterminable number of potential readers. . . .  In addition, we note that a number of courts have declined, on First Amendment grounds, to impose a duty similar to the one urged by plaintiff here.

Id. at 1267 (citations and quotation marks omitted).  Thus, Illinois courts recognize that the First Amendment protects video games and similar “complex” forms of entertainment, even though they may depict violence.  American Amusement Machine Ass’n v. Kendrick, 244 F.3d 572, 574 (7th Cir. 2001) (applying Illinois law); Serpico v. Village of Elmwood Park, 799 N.E.2d 961, 969 (Ill. App. 2003).

Indiana

The Indiana product liability statute defines “[p]roduct” to “mean[] any item or good that is personalty.”  Ind. Code §34-6-2-114(a).  In Marsh v. Dixon, 707 N.E.2d 998 (Ind. App. 1999), the purchase of a ticket for a “limited right to ride” that did not confer “an interest in any property” did not involve sale of a “product” under this statute.  Id. at 1002.  Likewise, to evade a statute of repose, the plaintiff in Alexander v. Beech Aircraft Corp., 952 F.2d 1215, 1220 (10th Cir. 1991), argued that a pilot handbook, alone, was a “product” under the Indiana statute.  However, “the instructions themselves are not a product as defined by the act” because “the Indiana Products Liability Act contains a definition that ‘product’ means any item or good that is personalty at the time it is conveyed by the seller to another party.’”  Id. at 1220.

Similarly, a website is not a UCC “good” under Indiana law:

It would be a mistake . . . to treat software as a good simply because it was contained in a tangible medium that fits within that category.  This would conflate the sale of a book with the sale of its intellectual content. . . .  A website created . . . is neither tangible nor moveable in the conventional sense.  To be sure, one can copy a website using tangible, movable objects such as hard drives, cables, and disks.  These objects are in themselves just as certainly goods, but it does not necessarily follow that the information they contain classifies as goods as well. . . .  As such . . . the U.C.C. did not apply.

Conwell v. Gray Loon Outdoor Marketing. Group, Inc., 906 N.E.2d 805, 812 (Ind. 2009); see also Data Processing Services, Inc. v. L.H. Smith Oil Corp., 492 N.E.2d 314, 319 (Ind. App. 1986) (UCC inapplicable where “it is the skill and knowledge of the programmer which is being purchased in the main, not the devices by which this skill and knowledge is placed into the buyer’s computer”), disapproved on irrelevant grounds, Insul-Mark Midwest, Inc. v. Modern Materials, Inc., 612 N.E.2d 550 (Ind. 1993).

Iowa

Defining “product” for purposes of Iowa Code §613.18 (“limitations on products liability of nonmanufacturers”), the Iowa Supreme Court relied on Black’s Law Dictionary:  “Something that is distributed commercially for use or consumption and that is usually (1) tangible personal property. . . .”  Kolarik v. Cory International Corp., 721 N.W.2d 159, 163 (Iowa 2006) (quoting 1999 edition).  “[I]f something does not meet the [Kolarik] definition of ‘product’ . . ., then it also is not a ‘product’ that would give rise to a products liability action.”  Nationwide Agribusiness Insurance Co. v. SMA Elevator Construction, Inc., 816 F. Supp.2d 631, 646 (N.D. Iowa 2011).  However, neither case involved a claim that something intangible was a product.  We found no other Iowa law bearing on this issue.

Kansas

The Kansas product liability statute does not define “product.”  Kan. Stat. §60-3302.  We have found nothing in Kansas law addressing whether an intangible, such as electronic data, can be considered a “product” for product liability purposes.

Kentucky

The Kentucky product liability statute does not define “product.”  Ky. Rev. Stat. §411.300.  Kentucky has followed Third Restatement §19(a), “defining ‘product’ in relevant part as ‘tangible personal property distributed commercially for use or consumption.’”  Giddings & Lewis, Inc. v. Industrial Risk Insurers, 348 S.W.3d 729, 737 n.5 (Ky. 2011).  Accord State Farm Mutual Automobile Insurance Co. v. Norcold, Inc., 849 F.3d 328, 332 (6th Cir. 2015) (applying Kentucky law); NS Transportation Brokerage Corp. v. Louisville Sealcoat Ventures, LLC, 2015 WL 1020598, at *3 n.2 (W.D. Ky. March 9, 2015); Powell v. Tosh, 929 F. Supp.2d 691, 713 (W.D. Ky. 2013), vacated in part on reconsideration on irrelevant grounds, 2013 WL 1878934 (W.D. Ky. May 3, 2013) (all quoting §19(a)).

Dismissal of negligence and strict liability claims against the interactive video game Dungeons and Dragons was affirmed in Watters v. TSR, Inc., 904 F.2d 378 (6th Cir. 1990), under Kentucky law.  “As far as we have been able to ascertain, however, the doctrine of strict liability has never been extended to words or pictures.”  Id. at 381.

The defendant cannot be faulted, obviously, for putting its game on the market without attempting to ascertain the mental condition of each and every prospective player.  The only practicable way of insuring that the game could never reach a “mentally fragile” individual would be to refrain from selling it at all − and we are confident that the courts of Kentucky would never permit a jury to say that simply by marketing a parlor game, the defendant violated its duty to exercise ordinary care.

Id.  The Watters court refused to expand Kentucky law to allow tort claims over the content of “[t]elevision, movies, magazines and books (including comic books)” that at the time (in 1990) were “far more pervasive than the defendant’s games.”  Id. at 382.

Were the courts of Kentucky prepared to say that works of the imagination can be linked to a foreseeable danger of anti-social behavior, thereby giving rise to a duty to warn, one would expect to find Kentucky caselaw to that effect in lawsuits involving television networks, book publishers, or the like.  There is no such caselaw.

Id. at 382.

James v. Meow Media, Inc., 90 F. Supp.2d 798 (W.D. Ky. 2000), aff’d, 300 F.3d 683 (6th Cir. 2002), invoked both Watters and Restatement Third §19(a) in rejecting a strict liability claim against allegedly obscene and violent internet and video game content.  90 F. Supp.2d at 811.

Counsel for the Plaintiffs fail to appreciate the critical distinction between intangible properties, such as those which caused harm to Plaintiffs, and tangible properties for which strict liability can be imposed. . . .  Pursuant to the teachings of the Sixth Circuit’s opinion in Watters, which is now further supported by the analysis found in the Restatement Third of Torts, the Court finds as a matter of law that intangible thoughts, ideas, and expressive content are not “products” within the realm of the strict liability doctrine.

90 F. Supp.2d at 810-11.

The Sixth Circuit affirmed.  James v. Meow Media, Inc., 300 F.3d 683 (6th Cir. 2002).  Plaintiff’s “theory of liability, that the ideas conveyed by the video games, movie cassettes and internet transmissions, caused [a criminal] to kill his victims, attempts to attach product liability in a nearly identical way” as in WattersId. at 701.  Further, plaintiff’s claim did not involve anything “tangible.”

In this case, however, [plaintiff] is arguing that the words and images purveyed on the tangible cassettes, cartridges, and perhaps even the electrical pulses through the internet, caused [the criminal] to snap and to effect the deaths of the victims.  When dealing with ideas and images, courts have been willing to separate the sense in which the tangible containers of those ideas are products from their communicative element for purposes of strict liability.  We find these decisions well reasoned.  The video game cartridges, movie cassette, and internet transmissions are not sufficiently “tangible” to constitute products in the sense of their communicative content.

Id. (citations omitted).

Louisiana

The Louisiana product liability statute defines “‘[p]roduct” as “a corporeal movable.”  La. Rev. Stat. §9:2800.53(3).  The Louisiana Supreme Court, in a tax case, held that computer software was such a corporeal movable.

The term “tangible personal property” set forth in the City Code, and its synonymous Civil Code concept “corporeal movable,” must be given their properly intended meaning.  Physical recordings of computer software are not incorporeal rights to be comprehended by the understanding. Rather, they are part of the physical world.

South Central Bell Telephone Co. v. Barthelemy, 643 So.2d 1240, 1244 (La. 1994).

Relying on SCBT, Schafer v. State Farm Fire & Casualty Co., 507 F. Supp.2d 587 (E.D. La. 2007), held that “defective computer software may give rise to strict products liability in tort.”  Id. at 601.  Less than a year later, however, the plaintiffs in Schafer “agreed to strike the LPLA [product liability] claim in favor of [their] other claims,” and nothing further was litigated.  Schafer v. State Farm & Fire Casualty Co., 2008 WL 11353621, at *2 (E.D. La. June 11, 2008).

Corley v. Stryker Corp., 2014 WL 3375596 (Mag. W.D. La. May 27, 2014), adopted, 2014 WL 3125990 (W.D. La. July 3, 2014), involved a customized medical device created through use of electronic files and patient-matched imaging data.  Corley allowed a design defect product liability claim against the “software used in creating each” device to survive a motion to dismiss.  Id. at *4.  The software was “a necessary part of the cutting guide.”  Id.  Allegations that the software was defective, “sufficiently alleged that the cutting guide used during [plaintiff’s] surgery was unreasonably dangerous in design due to the alleged software defects” and could sustain a product liability claim.  Id.

Conversely, a “medical procedure” was not an LPLA “corporeal movable” in Wagner v. Reiss, 2020 WL 836383 (E.D. La. Feb. 20, 2020) (“a procedure . . . is not a product under the LPLA’s definition”).  A property rental website was analogous to a travel agent, not a property owner, for negligence purposes in Carroll v. American Empire Surplus Lines Insurance Co., 289 F. Supp.3d 767, 773-74 (E.D. La. 2017).  Carroll “disagree[d]” that ““control of the platform” could be “control of the property.”  Id. at 775 (footnote omitted).

Like most states, Louisiana does not impose tort liability for allegedly false intangible intellectual content.  See Byers v. Edmondson, 712 So. 2d 681, 687 (La. App.) (rejecting negligence “duty to not produce this film in the form in which it was released and/or to protect [plaintiff] from viewers who would imitate the [film’s] violent acts or crimes”), writ denied, 726 So. 2d 29 (La. 1998); Pittman v. Dow Jones & Co., 662 F. Supp. 921, 923 (E.D. La.) (“no duty in tort exists for a newspaper publisher to investigate its advertisers for the correctness of the ads placed in the publication”), aff’d, 834 F.2d 1171 (5th Cir. 1987) (per curiam).

Maine

Maine has a product liability statute that does not define “product.”  Me. Rev. Stat. tit. 14, §221.  In data breach litigation, In re Hannaford Brothers Co. Customer Data Security Breach Litigation, 613 F. Supp.2d 108 (D. Me. 2009), aff’d in part & rev’d in part on irrelevant grounds, 659 F.3d 151 (1st Cir. 2011), construed this statute and held that an “electronic payment system does not come within the strictures of the statute” because it was not a “product” as contemplated in Restatement Third §19.  Id. at 126 n.89.  Hannaford rejected plaintiffs’ “public policy argument,” holding instead that “the general common law does not support the expansion of strict liability that the plaintiffs have requested.”  Id. at 126-26.

Consistently, Zemco Industries, Inc. v. FCW Technologies, Inc., 2005 WL 2723800 (Me. Super. April 4, 2005), applied the Black’s Law Dictionary definition of “product” as “tangible personal property, but in a case involving an improvement to real estate, not an intangible.  Id. at *5.  Cf. Pearl Investments, LLC v. Standard I/O, Inc., 257 F. Supp.2d 326, 353 (D. Me. 2003) (“development of a software system from scratch” was not a UCC good).

Maryland

The Maryland product liability statute defines “[p]roduct” to be “a tangible article.”  Md. Code, Cts. & Jud. Proc. §5-115(a)(4).  Two Maryland law decisions have utilized Restatement Third §19(a).  In Robinson v. Big Mouth, Inc., 2017 WL 11725906 (D. Md. Sept. 26, 2017), a picture used on toilet paper could not be the basis for product liability claim.

Maryland’s statute, along with the Restatement (Third) of torts, similarly define “product” as “tangible.”  Plaintiff’s claims are that an image placed on a product, and not the product itself, injured him.  Negligence and strict products liability law does not recognize a cause of action for alleged harm stemming from an intangible expression.

Id. at *1 (citations omitted).  See Schiaffino v. Ikea U.S. East, LLC, 2015 WL 4040618, at *3 n.2 (D. Md. June 30, 2015) (finding Restatement Third §19(a) definition to be “persuasive guidance that bolsters the notion that a product is ‘tangible personal property’”).  Another recent decision, Burke v. Kidz Jungle World, LLC, 2023 WL 2910774, at *8 (Md. App. April 12, 2023) (unpublished), used the Black’s Law Dictionary definition of “product” as “tangible personal property” in holding strict liability inapplicable to “selling an entertainment service.”  Id. at *8.

Bugoni v. Employment Background Investigations, Inc., 2020 WL 5994958, at *7 (D. Md. Oct. 9, 2020), held that the report of an employment background investigation could not be a “product” under Maryland law, both because it was not a “tangible” product under the statute and because of the First Amendment concerns expressed in Winter:

Product liability law is patently inapplicable in this context.  [Block quotation from Winter omitted].  Plaintiff’s Complaint fails to allege the physical means by which the Report’s contents were transmitted . . ., [but e]ven assuming that the Report arrived in a tangible, hard copy format, Plaintiff does not allege injury from the paper and print, but from the intangible ideas and content.  His claims about the content of the background investigation are appropriately governed by the [Fair Credit Reporting Act], not by product liability laws.

Id. at *7 (citations and quotation marks omitted).  The Fourth Circuit affirmed “for the reasons stated by the district court.”  Bugoni v. Employment Background Investigations, Inc., 2023 WL 3721210, at *1 (4th Cir. May 30, 2023) (per curiam).

In analogous areas, Landaverde v. Navarro, 189 A.3d 849, 867 n.8 (Md. App. 2018), cert. denied, 189 A.3d 849 (Md. 2018), held that software was not “tangible” for insurance purposes.  Id. at 867 n.8.  Similarly, Gorin v. Vivint Solar Dev. LLC, 2019 WL 4735412, at *3 (D. Md. Sept. 27, 2019), held that electricity is not a “tangible” product as required by Magnuson Moss Act.  Id. at *3.

In Jones v. J.B. Lippincott Co., 694 F. Supp. 1216 (D. Md. 1988), the court cited free “speech principles” in rejecting the imposition of liability on a publisher for the intangible ideas in a book.

No case has extended Section 402A to the dissemination of an idea or knowledge in books or other published material.  Indeed to do so could chill expression and publication which is inconsistent with fundamental free speech principles.  Accordingly, the Court will not hold [a publisher] strictly liable as publisher for the content of books that it publishes.

Id. at 1217-18 (citation omitted).  Accord Ginsburg v. Agora, Inc., 915 F. Supp. 733, 739-40 (D. Md. 1995) (following “the general rule precluding the imposition of liability for nondefamatory, negligently untruthful reporting”).

Conversely, in Rice v. Paladin Enterprises, Inc., 128 F.3d 233 (4th Cir. 1997) (applying Maryland law), a book publisher was held liable after “stipulat[ing] both that it had knowledge and that it intended that [its book] would immediately be used by criminals” to commit crimes.  Id. at 267-68.  Rice expressly “[a]ssum[ed . . .] that liability could not be imposed . . . on a finding of mere foreseeability or knowledge that the instructions might be misused for a criminal purpose.”  Id. at 266.

[L]iab[ility] under the circumstances of this case is not even tantamount to a holding that all publishers of instructional manuals may be liable for the misconduct that ensues when one follows the instructions which appear in those manuals. . . .  [W]e do not address ourselves to the potential liability of a publisher for the criminal use of published instructions on activity that is either entirely lawful, or lawful or not depending upon the circumstances of its occurrence.

Id.

Massachusetts

Intangible ideas are not a basis for tort liability in Massachusetts.  Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067, 1071-72 (Mass. 1989), recognized that the First Amendment precluded tort liability for injuries allegedly “incited” by a motion picture.  The “conclu[sion] that, as a matter of law, the defendants did not violate their duty of reasonable care . . . follows from the First and Fourteenth Amendments to the United States Constitution.”  Id. at 1071.

The same is true of strict liability/implied warranty.  The producer of game for schoolchildren could not be subjected to strict liability in Garcia v. Kusan, Inc., 655 N.E.2d 1290 (Mass. App. 1995).  “Even assuming . . . that the game − the concept and instructions − was the ‘product” which was sold . . ., there is no legal support for imposing liability on such a ‘product’ where the seller does not provide a tangible item as well as instructions.”  Id. at 1293.  Garcia analogized to the Winter line of cases “refusing to extend to an author or publisher of a book the duty imposed on suppliers of other products to provide complete and accurate information on their use.”  Id.  “[A]lmost unanimous judicial authority [is] against the plaintiffs’ assertions of liability, explaining that product liability law is geared to the tangible world and is unsuited to words and ideas.”  Id.

We conclude that the plaintiff cannot recover on the basis that the game (the concept and instructions) is the product either on strict liability or warranty principles or on theories of negligence.  In the absence of special circumstances, he may not recover for instructions and representations concerning the use of other manufacturers’ equipment

Id. at 1294 (citations omitted).

Among other precedent, Garcia cited Barden v. Harpercollins Publishers, Inc., 863 F. Supp. 41 (D. Mass. 1994), holding that a negligent misrepresentation cannot lie for contents of a book.

[T]he Court concludes that plaintiff is attempting to recover under a untenable legal theory.  Simply put, allowing plaintiff to seek relief under a negligent misrepresentation claim would open a pandora’s box that might be difficult to close.  The burden placed upon publishers to check every fact in the books they publish is both impractical and outside the realm of their contemplated legal duties.

Id. at 45.

Michigan

The Michigan product liability statute defines “product” only as “includ[ing] any and all component parts to a product,” which is rather circular.  Mich. Comp. Laws §600.2945(g).  Michigan courts have been conservative in what it considers to be a “product.”  Williams v. Detroit Edison Co., 234 N.W.2d 702, 705 (Mich. App. 1975), refused to hold electricity a “product” for product liability purposes.  “[T]he ‘product‘ involved in this case is not a tangible item. . . .  Rather, it is a form of energy. . . .  Electricity is a service rather than a ‘good.‘”  In a case involving a commission statute, the same Michigan court likewise “agree[d]” that “‘product,’ as used in [the statute]” was limited “to tangible goods only and not to intangible items.”  Klapp v. United Insurance Group Agency, 2674 N.W.2d 736, 737 (Mich. App. 2003); accord Anton v. SBC Global Services, Inc., 2004 WL 7334819, at *18 (Mag. E.D. Mich. March 31, 2004) (“access to digital electronic signals over DSL lines” was “intangible” and thus not a “product” under same statute), adopted, 2004 WL 7334817 (E.D. Mich. Oct. 6, 2004).

In Michigan, “publishers do not owe any duty to . . . readers to warn them of the content of its [sic] publications.”  Fowler v. Thomas Nelson Publishing, 2009 WL 612385, at *2 (E.D. Mich. March 6, 2009); accord Lewin v. McCreight, 655 F. Supp. 282, 284 (E.D. Mich. 1987) (publisher did not have duty to warn of “defective ideas” supplied by third-party authors).  “[N]either the Michigan Products Liability Statute nor the common law . . . imposes a duty upon a publisher to warn of ‘defective ideas’ in a book published by it but written by a third person.”  Romero v. Buhimschi, 2007 WL 2902896, at *16 (E.D. Mich. Sept. 28, 2007), aff’d, 396 F. Appx. 224 (6th Cir. 2010).  See also Romantics v. Activision Publishing, Inc., 574 F. Supp.2d 758, 765 (E.D. Mich. 2008) (“video games are expressive works protected by the First Amendment”).

More recently, the definition of “component” in a state product liability statute was interpreted as applying to the computer software that operated a robotic assembly line.  “[I]f the [assembly] line is itself a product, then . . ., the [computer] programming is surely a component part of that product.  The [computer] programming is an integral and essential part of the [assembly] line.”  Holbrook v. Prodomax Automation Ltd., 2021 WL 4260622, at *5 (W.D. Mich. Sept. 20, 2021), certification denied, 2021 WL 5052101 (W.D. Mich. Oct. 15, 2021).  The court declined to follow the Third Restatement definition of product because “the [statutory] ‘any and all component parts’ language shows that the [statute] defines product more broadly than the Third Restatement does.”  Id. at *6.

Minnesota

Minnesota’s product liability statute uses the term “goods” in place of “product,” and defines “goods” as “tangible personal property.”  Minn. Stat. §604.101(c, e).  In Norman v. Crow Wing Co-op. Power & Light Co., 2014 WL 7190225 (Minn. Dist. Feb. 3, 2014), the court, applied both the “product” definitions in the Third Restatement §19(a) (“product” as “analogous to the distribution and use of tangible personal property”) and Black’s Law Dictionary (“tangible personal property, (2) the result of fabrication or processing, (3) an item that is passed through a chain of commercial distribution”).  Norman held electrical distribution systems, being “tangible” supported treating electricity as a product.  Id. at *5.  See Smith v. Questar Capital Corp., 2013 WL 3990319, at *11 (D. Minn. Aug. 2, 2013) (“investment securities are not tangible personal property” and thus “not ‘goods’” under §604.101).

Likewise, Russo v. NCS Pearson, Inc., 462 F. Supp.2d 981 (D. Minn. 2006), held as a matter of law that “SAT test booklet, answer sheets, and score reports” could not possibly qualify as “products” under Minnesota law.  Id. at 996.  Nor could they be “tangible personal property” as required by the Magnuson Moss Act.  Finally, a contract for development of new software was not a purchase of UCC goods under Minnesota law in Multi-Tech Systems, Inc. v. Floreat, Inc., 2002 WL 432016, at *3-4 (D. Minn. March 18, 2002).

Mississippi

Mississippi has a product liability statute that does not define “product.”  Miss. Code. §11-1-63.  A Mississippi court cited Restatement Third §19 definition of “product” in Palermo v. LifeLink Foundation, Inc., 152 So.3d 1177, 1181 (Miss. App.) (blood products), aff’d on irrelevant grounds, 152 So. 3d 1099 (Miss. 2014), but not the language addressing tangibility.  However, Lawson v. Honeywell International, Inc., 75 So.3d 1024, 1029 (Miss. 2011), referenced product tangibility as part of defining “manufacturer” rather than “product” for purposes of the statute:

Black’s Law Dictionary defines “produce” as “to bring into existence” or “to create” . . . [which] implies that the manufacturer of a good is the person or company who brings the good into its tangible form − the point at which the good is ready for sale, or resale, to the consuming public.  When a company merely creates the design of a product, but does not bring the product “into existence,” it is not functioning as a “manufacturer.”

Lawson v. Honeywell International, Inc., 75 So.3d 1024, 1029 (Miss. 2011) (citations omitted) (emphasis added).

Beyond this, we have found nothing in Mississippi law addressing whether an intangible, such as electronic data, can be considered a “product” for product liability purposes.

Missouri

Missouri has a product liability statute that does not define “product.”  Mo. Ann. §537.760.  In general, Missouri law has long “consider ‘products’ to mean goods or tangible items usually manufactured, sold, or distributed.”  Rafiner Elevator Works, Inc. v. Michigan Mutual Liability Co., 392 S.W.2d 240, 242 (Mo. 1965) (interpreting an insurance policy).  See International Business Machines Corp. v. Director of Revenue, 958 S.W.2d 554, 558 (Mo. 1997) (computerized data “outputs . . . transmitted to customers electronically” not “tangible personal property” for tax purposes).

A Missouri appellate court followed Restatement Third §19(a) in Hobbs v. Boy Scouts of America, Inc., 152 S.W.3d 367 (Mo. App. 2004), transfer denied (Mo. Jan. 25, 2005).  The plaintiff’s attempt to bring a strict product liability claim against a “scouting program” failed.  Id. at 372.

Defendants point out that the Restatement of Torts (Third) defines a product as “tangible personal property distributed commercially for use or consumption.”  Product liability theories do not apply to services.  Plaintiff presents no authority to the contrary.  Plaintiff presents the fact that one scout leader stated, “I think of scouting as a product. . . .”  These statements fall short of a judicial adjudication that scouting is a product within the meaning of the product liability laws.  For all the foregoing reasons, we conclude that there are no material facts in dispute and that Defendants were entitled to judgment as a matter of law.

Id. (citation and quotation marks omitted).

Interactive computer games have been recognized as “entitled to the protection of free speech” under Missouri law.  Interactive Digital Software Ass’n v. St. Louis County, 329 F.3d 954, 958 (8th Cir. 2003) (applying Missouri law).  “[M]odern technology” that is “constructed to be interactive” does “not automatically disqualify modern video games” from First Amendment protection.  Such technology is “analytically indistinguishable from protected media such as motion pictures.”  Id. at 957 (citation and quotation marks omitted).  But see Coleman v. Dental Organization for Conscious Sedation, LLC, 2010 WL 5146603, at *2-3 (E.D. Mo. Dec. 13, 2010) (whether “education, information, and protocols” were products could not be decided on the pleadings).

Montana

Montana recently enacted a product liability statute that does not define “product.”  Mont. Code §27-1-719.  Previously, in Montana, what is “a ‘product’ is defined by policy considerations,” and “’product” is narrowly defined.”  Papp v. Rocky Mountain Oil & Minerals, Inc., 769 P.2d 1249, 1255-56 (Mont. 1989) (building not a product).  In Alexander v. Montana-Dakota Utilities Co., 2020 WL 6262101 (D. Mont. Oct. 23, 2020), a utility’s “tracking system” could not be the basis for a strict liability claim.

[The] tracking system does not qualify as a “product” because it is not a physical good that has passed through the stream of commerce or changes hands from seller to buyer.  [Defendant] does not sell the tracking system, and the tracking system does not change possession. It cannot serve as the subject of a strict products liability claim.

Id. at *2.

Nebraska

Nebraska has a product liability statute that does not define “product.”  Neb. Rev. Stat. §25-21,180.  We have found nothing in Nebraska law addressing whether an intangible, such as electronic data, can be considered a “product” for product liability purposes.

Nevada

Nevada has a limited product liability statute that does not define “product.”  Nev. Rev. Stat. §695E.090.  An appellate court in Nevada found “useful” the definition of “product” in Restatement Third §19(a).  Schueler v. Ad Art, Inc., 472 P.3d 686, 693 (Nev. App. 2020).

[A court may] use appropriate definitions as guidance when determining whether an item is indeed a product for purposes of strict liability.  A court, for example, may find useful the definition of product found in the Restatement (Third) of Torts, which states that “[a] product is tangible personal property distributed commercially for use or consumption. . . .”  Nevertheless, while this or a similar definition may be beneficial to a court when utilizing the case-by-case approach, it is not a shortcut for avoiding consideration of the policy objectives.

Id. at 693 (Restatement citation omitted).  Schueler did not involve an intangible product, but rather a commercial sign.  Accord Safeco Insurance Co. v. Air Vent, Inc., 616 F. Supp.3d 1079, 1084 & nn. 13-14 (D. Nev. 2022) (following Schueler and relying or Restatement Third §19) (building component).  Similarly, Kolev v. ThyssenKrupp Elevator Corp., 2022 WL 10225742, at *1 (Nev. Dist. June 28, 2022), used the Black’s Law Dictionary definition of “product,” including as “tangible personal property, id. at *1, but, again, the product at issue (an elevator) was not an intangible.

An intangible contract could not support a strict liability claim in Allan v. American Family Mutual Insurance Co., 2013 WL 1104776 (D. Nev. March 12, 2013), which held that “[a] contract is an abstract agreement, not a physical ‘product’” and thus “not a product subject to a strict liability claim.”  Id. at *2.

In the negligence context, Beckman v. Match.com, LLC, 743 F. Appx. 142 (9th Cir. 2018) (applying Nevada law), affirmed dismissal of a failure-to-warn claim brought against an internet dating service.  Use of the site did not create a “special relationship” that could support a duty to warn.  Id. at 143.

New Hampshire

A limited New Hampshire product liability statute, declared unconstitutional solely on severability grounds, did not define “product.”  N.H. Rev. Stat. §507-D:1.  We have found nothing in New Hampshire law addressing whether an intangible, such as electronic data, can be considered a “product” for product liability purposes.

New Jersey

The New Jersey Products Liability Act (“NJPLA”) does not expressly define “product.”  N.J. Stat. §§2A:58C-1, 2A:58C-10.  Applying New Jersey law, Rodgers v. Christie, 795 F. Appx. 878 (3d Cir. 2020), held that a “multifactor risk estimation model,” a computer program that assesses whether a criminal defendant should be released pending trial, was not a product, utilizing the definition provided by Restatement Third §19(a).  “New Jersey courts often look to the Third Restatement in deciding issues related to the state’s products liability regime.”  Id. at 879.

The [program] is neither “tangible personal property” nor remotely “analogous to” it. Restatement (Third) of Torts: Products Liability §19(a).  As [the] complaint recognizes, it is an “algorithm” or “formula” using various factors to estimate [the probability of a result]. . . .  [I]information, guidance, ideas, and recommendations are not “product[s]” under the Third Restatement, both as a definitional matter and because extending strict liability to the distribution of ideas would raise serious First Amendment concerns.

Id. at 880 (citation and quotation marks omitted).  Rodgers thus held that “the NJPLA applies only to defective products, not to anything that causes harm or fails to achieve its purpose.”  Id.

The decision that was affirmed, Rodgers v. Laura & John Arnold Foundation, 2019 WL 2429574 (D.N.J. June 11, 2019), aff’d, 795 F. Appx. 878 (3d Cir. 2020), likewise relied on Restatement Third §19, 2019 WL 2429574, at *2 (rejecting plaintiff’s reliance on non-product liability cases).

Rather, the [program] constitutes information, guidance, ideas, and recommendations. . . .  Under the First Amendment, information and guidance such as that reflected in the [program] are not subject to tort liability because they are properly treated as speech, rather than product.  Accordingly, Plaintiff’s claims of products liability fail at the outset.

Id. at *3 (citations omitted).

The day before the federal court decided Rodgers, Grossman v. Rockaway Township, 2019 WL 2649153 (N.J. Super. Law Div. June 10, 2019), held that the NJPLA did not support claims premised on allegations against a website that its “product is designed to be addictive” and was “not sufficiently designed” to “enforce age restrictions.”  Id. at *4.  “No persuasive or other authority has been presented to this Court to support the conclusion that [the website’s] role of involvement in the events of this case constitute a ‘product’ rather than a ‘service.’”  Id. at *15.  Cf. American Delta Technologies., Inc. v. RK Electronic. Information Concepts, 647 A.2d 1344, 1347 (N.J. Super. App. Div. 1994) (“product” in commission statute limited to “tangible products”); Huzinec v. Six Flags Great Adventure, LLC, 2017 WL 44850, at *5 (D.N.J. Jan. 3, 2017) (entry ticket not a UCC good because “the putative good[] must be tangible and movable”).

In negligence, under New Jersey law, a publisher had no duty to investigate and test allegedly injurious products advertised in its publication.  Yuhas v. Mudge, 322 A.2d 824, 825 (N.J. Super. App. Div. 1974).  Such liability “would have a staggering adverse effect” because it “would open the doors to a liability in an indeterminate amount for an indeterminate time to an indeterminate class.”  Id. (citation and quotation marks omitted).

New Mexico

We have found nothing in New Mexico law addressing whether an intangible, such as electronic data, can be considered a “product” for product liability purposes.

New York

In Matter of Eighth Judicial Dist. Asbestos Litigation, 129 N.E.3d 891 (N.Y. 2019), the New York Court of Appeals agreed with the Third Restatement definition of “product” as “tangible personal property” or something “analogous” in “distribution and use.”  Id. at 901 (quoting §19(a)).  Also applying the Third Restatement to New York law, Eberhart v. Amazon.com, Inc., 325 F. Supp.3d 393 (S.D.N.Y. 2018), held that an “online marketplace” “is better characterized as a provider of services.”  Id. at 399.  Similarly, in Intellect Art Multimedia, Inc. v. Milewski, 2009 WL 2915273 (N.Y. Sup. Sept. 11, 2009) (unreported, in table at 899 N.Y.S.2d 60), held:

[P]laintiff has failed to demonstrate that, as a matter of law, the . . . website is a product so that [defendant] should be held strictly liable for any “injury” caused thereby. . . .  [T]his court is not persuaded that this website in the context of plaintiff’s claims is a “product” which would otherwise trigger the imposition of strict liability.  Here, plaintiff’s claims arise from the fact that the website is a forum for third-party expression.  [Defendant] further solicits business through the website, but what it offers is the “service” of following up with posters and resolving their complaints.

Id. at *7.  While “strict products liability may apply to standardized and mass-downloaded software [it] does not apply to information or ‘expressive’ content.”  Herrick v. Grindr, LLC, 306 F. Supp.3d 579, 592 n.9 (S.D.N.Y. 2018) (citations omitted), aff’d, 765 F. Appx. 586 (2d Cir. 2019).  Analogously, “a transfer of intellectual property rights” to bespoke software was not a UCC good in Architectronics, Inc. v. Control Systems, Inc., 935 F. Supp. 425, 432 (S.D.N.Y. 1996).

In the negligence context, Bibicheff v. PayPal, Inc., 844 F. Appx. 394 (2d Cir. 2021), applied New York law and held that a website owed users no “duty to control the conduct of third parties.”  Id. at 396.  A couple of other negligence cases that involve our prescription medical product sandbox further demonstrate the limits New York puts on suits over information, rather than tangible products.  Demuth Development Corp. v. Merck & Co., 432 F. Supp. 990 (E.D.N.Y. 1977), held that the publisher of “an encyclopedia of chemicals and drugs” (the so-called Merck Manual) could not be liable for allegedly “misrepresenting the toxicity of [a substance], which plaintiff asserts to be completely non-toxic.”  Id. at 991-92.  Negligent misrepresentation claims do not lie against book publishers under New York law.  “[Defendant’s] right to publish free of fear of liability is guaranteed by the First Amendment and the overriding societal interest in the untrammeled dissemination of knowledge.”  Id. at 993 (citation omitted).  The demise of privity in product liability did not support liability.  Id. at 993-94. 

Likewise, New York law prohibited plaintiffs from suing the publisher of the Physicians’ Desk Reference (“PDR”) because the information it contained – obtained from drug manufacturers – might be erroneous:

The material published by PDR is all approved verbatim by the federal Food and Drug Administration. . . .  In light of that fact, PDR’s own failure to perform independent tests on the products described cannot be deemed “malicious,” does not evince “intent to harm,” and is not “reckless.”  Plaintiff does not claim that [defendant] did test [the drug] and was aware of its addictive qualities but nonetheless failed to warn its readers of that fact.

Libertelli v. Hoffman-La Roche, Inc., 1981 WL 714285, at *2 (S.D.N.Y. Feb. 23, 1981).  First Amendment concerns also precluded the suit.  Id. (“the reasons stated above in connection with publishers’ liability for false advertisements, the First Amendment blocks [plaintiff’s] claim against the publisher”).

Numerous other New York cases preclude tort liability for the allegedly negligent communication of supposedly false in formation.  “The instantaneous, interactive, computerized delivery of defendant’s service does not alter the facts:  plaintiff purchased defendant’s news reports as did thousands of others. . . .  [N]ew technology does not require a new legal rule merely because of its novelty.”  Daniel v. Dow Jones & Co., 520 N.Y.S.2d 334, 337-38 (N.Y. Civ. 1987).  See First Equity Corp. v. Standard & Poor’s Corp., 869 F.2d 175 (2d Cir. 1989) (publisher not liable for alleged negligent misstatements in investment guide) (applying New York law); Abraham v. Entrepreneur Media, Inc., 2009 WL 4016515, at *1 (E.D.N.Y. Nov. 17, 2009) (“under New York law, a magazine publisher owes no duty of care to subscribers or readers, and thus cannot be found liable for negligently publishing non-defamatory misstatement”); Stoianoff v. Gahona, 670 N.Y.S.2d 204, 205 (N.Y. App. Div. 1998) (“no duty on the part of a publisher to investigate its advertiser”); Pressler v. Dow Jones & Co., 450 N.Y.S.2d 884, 885 (N.Y. App. Div. 1982) (“a newspaper has no duty to investigate each of the advertisers who purchases space in its publication”); Lacoff v. Buena Vista Publishing, Inc., 705 N.Y.S.2d 183, 187-88 (N.Y. Sup. 2000) (“the First Amendment strictly limits the imposition of liability on publishers for the contents of books,” both “works that provide entertainment and amusement, as well as those that provide instruction and advice”); Beasock v. Dioguardi Enterprises, Inc., 494 N.Y.S.2d 974, 29-30 (N.Y. Sup. 1985) (“publications themselves . . . cannot serve as the basis for the imposition of liability under a theory of either strict products liability or breach of warranty”); Roman v. New York, 442 N.Y.S.2d 945, 948 (N.Y. Sup. 1981) (non-profit not liable for negligent misstatement in contraceptive pamphlet); Walter v. Bauer, 439 N.Y.S.2d 821, 822-23 (N.Y. Sup. 1981) (“plaintiff was not injured by use of the book for the purpose for which it was designed, i.e., to be read”), aff’d in pertinent part, 451 N.Y.S.2d 533 (N.Y. App. Div. 1982); Suarez v. Underwood, 426 N.Y.S.2d 208, 210 (N.Y. Sup. 1980) (“Nor should the onerous burden be placed upon newspapers . . . to conduct investigations in order to determine the effect of a questioned advertisement”) (citation and quotation marks omitted), aff’d mem., 449 N.Y.S.2d 438 (N.Y. App. Div. 1981).

Conversely, Gridiron.com, Inc. v. National Football League Player’s Ass’n, Inc., 106 F. Supp.2d 1309, 1312 (S.D. Fla. 2000) (applying New York law), specifically distinguished product liability precedent in holding that, for contract and right-of-publicity purposes, infringing “websites, in and of themselves, are products.”  Id. at 1314.  New York also has precedent that software-related “[i]ntangibles may be “goods” for UCC purposes.  Triangle Underwriters, Inc. v. Honeywell, Inc., 457 F. Supp. 765, 769 (E.D.N.Y. 1978), aff’d in part, rev’d in part on irrelevant grounds, 604 F.2d 737 (2d Cir. 1979).

North Carolina

North Carolina has a product liability statute that does not define “product.”  N.C. Gen. Stat. §99B-1.  Probably due to North Carolina not recognizing strict liability in any product liability context, N.C. Gen. Stat. §99B-1.1, we have found nothing in North Carolina law addressing whether an intangible, such as electronic data, can be considered a “product” for product liability purposes.

North Dakota

North Dakota has a product liability statute that does not define “product.”  N.D. Cent. Code §28-01.3-01.  We have found nothing in North Dakota law addressing whether an intangible, such as electronic data, can be considered a “product” for product liability purposes.

Ohio

Ohio’s product liability statute defines “[p]roduct” to be “any object, substance, mixture, or raw material that constitutes tangible personal property.”  Ohio Rev. Code §2307.71(A)(12)(a).  Applying this statute, Schaffer v. A.O. Smith Harvestore Products, Inc., 74 F.3d 722, 728 (6th Cir. 1996) (applying Ohio law), held that the “definitions . . . inidicate[] that training and instruction manuals are not so intended [to be separate products]”. Id. at 728-29.  Analogously, “the services of an attorney do not meet the definition of a ‘product’” under this statute because they are not “tangible personal property.”  Grenoble v. Rion, Rion, Rion, L.P.A., Inc., 2015 WL 1159401, at *4 (Ohio App. March 16, 2015), see also Douglas v. Ratliff, 2009 WL 3378672, at*8 (S.D. Ohio Oct. 20, 2009) (legal services are not “tangible personal property” as required by the Magnuson Moss Act).  On the other hand, an Ohio trial court read the same statute expansively and held that the instructions in a manual could be a product, where the statute of repose barred any claim about the tangible product itself.  Gardiner v. Kelowna Flightcraft Ltd., 2012 WL 3308239, at *5-6 (Ohio C.P. May 17, 2012) (disagreeing with Shaffer).

In Gutter v. Dow Jones, Inc., 490 N.E.2d 898 (Ohio 1986), the Ohio Supreme Court rejected a cause of action for negligent misrepresentation against a publisher.

In the absence of a contract, fiduciary relationship, or intentional design to cause injury, a newspaper publisher is not liable to a member of the public to whom all news is liable to be disseminated for a negligent misstatement in an item of news, not amounting to libel.

Id. at 900 (citation and quotation marks omitted).  “A contrary result would in effect extend liability to all the world and not a limited class.”  Id. (emphasis original).  Further, “public policy and constitutional constraints support protection to newspapers for a negligent misstatement of fact.” Id. at 901.  Accord Stancik v. CNBC, 420 F. Supp.2d 800, 808 (N.D. Ohio 2006) (“the same reasoning is even more appropriate in this context of broadcast media”).  Thus, the Winter rule, that information cannot give rise to product liability or related torts is also recognized in Ohio.

Oklahoma

Oklahoma has a limited product liability statute that does not define “product.”  Okla. Stat. tit. 76, §57.1.  In Oklahoma, “[i]t is well established that video games are a form of creative expression entitled to protection under the First Amendment.”  Entertainment Merchants Ass’n v. Henry, 2007 WL 2743097, at *2 (W.D. Okla. Sept. 17, 2007).  An Oklahoma UCC case held that the definition of “goods” “excludes information” and thus that the UCC did not “apply to an electronic transfer of information.”  CMI Roadbuilding, Inc. v. SpecSys, Inc., 550 F. Supp.3d 1180, 1186 (W.D. Okla. 2021) (citation omitted).  “Information” is “data, text, images, sounds, codes, computer programs, software, databases, or the like.”  Id. (citation and quotation marks omitted).  However, licensed software can be a UCC sale of “goods.”  NMP Corp. v. Parametric Technology Corp., 958 F. Supp. 1536, 1542 (N.D. Okla. 1997).

Oregon

Oregon enacted Restatement §402A verbatim by statute.  Or. Rev. Stat. §30.920(1-2).  In so doing the legislature intended “that the rule stated in subsections (1) and (2) of this section shall be construed in accordance with the Restatement (Second) of Torts sec. 402A, Comments a to m (1965).”  Or. Rev. Stat. §30.920(3).  In determining how to define “product,” Ass’n of Unit Owners of Bridgeview Condominiums v. Dunning, 69 P.3d 788 (Or. App. 2003), applied Restatement §402A, comment a, which as discussed at the outset of this post, “notes that the subject of section 402A is the liability of ‘suppliers of chattels.’”  Id. at 800.  Thus, for strict liability purposes in Oregon a product is “[a]n article of personal property, as opposed to real property. A thing personal and moveable.” Id. (quoting Black’s Law Dictionary).

In A.M. v. Omegle.com, LLC, 614 F. Supp.3d 814, 820 (D. Or. 2022), the plaintiff asserted product liability claims against an interactive website, probably under Oregon law.  A.M. held that the claims were not preempted but did not address whether they stated a product liability cause of action under the law of Oregon or any other state.  Id. at 819-20.

Gregory Funding LLC v. Saksoft, Inc., 2016 WL 4480693 (D. Or. Aug. 24, 2016), held that “creation of new custom software” did not involve a UCC good under Oregon law in.  Id. at *5.

Pennsylvania

In Pennsylvania, an intermediate Pennsylvania appellate court held that “the terms ‘goods’ and ‘products’ in the commercial world imply the creation of tangible items.”  Friestad v. Travelers Indemnity Co., 393 A.2d 1212, 1216 (Pa. Super. 1978).  Smith v. Linn, 563 A.2d 123 (Pa. Super. 1989), aff’d mem., 587 A.2d 309 (Pa. 1991), held that no tort cause of action could lie against the publisher of a book that allegedly contained “false and dangerous” information.  Id. at 125.  Smith rejected plaintiff’s analogy between books and drug package inserts.  “Instructions by a manufacturer which accompany medication or use of certain marketed goods cannot be equated with publication.”  Id. at 126.  As to strict liability, Smith held:

[W]e agree with the trial court’s rejection of appellant’s argument that the diet book is a product and was defective under the Restatement . . . §402A.  As was observed by the trial court in its Opinion, no appellate court in any jurisdiction has held a book to be a product for purposes of section 402A. . . .  Additionally, we agree with the trial court that the cases cited by appellant as imposing liability under section 402A upon publishers of aviation and navigation charts is not akin to the problem involved herein, especially since no first amendment concerns are present in those cases.

Id. at 126-27 (citations omitted).  In addition, Smith held:

  • The First Amendment barred plaintiff’s negligence theories, because no exception to protected speech – purely private matters, actual malice, shouting “fire” – were apposite.  563 A.2d at 125-26.
  • Other negligence sections of the Second Restatement, §§310-11, 557A, were not intended to apply to publishers, nor had any prior Pennsylvania decisions so applied them.  563 A.2d at 126.
  • “[D]ecline[d] to accept” a trial court decision that “deemed the text book to be a [UCC] good.”  Id. at 127 (finding no precedent supporting that holding).

Similarly, Snyder v. ISC Alloys, Ltd., 772 F. Supp. 244, 251 (W.D. Pa. 1991), refused to “expand the applicability of section 402A strict liability to reach a defendant who sold designs and technical advice rather than a finished product.”  Id. at 249.  For strict liability purposes, products “are finished items with a tangible form” and the court did “not believe mere ideas, information, communications and drawings can be considered products.”  Id. at 251.  Products have “tangible form,” whereas” an idea, expressed and configured in language and symbols, . . . clearly lacked the completeness and tangibility that characterized the “products” discussed in §402A.  Id.  See also Morris v. Phoenix Installation & Management Co., 2013 WL 6858299, at *3 (W.D. Pa. Dec. 30, 2013) (“designs and technical drawings are not ‘products’ under the law of strict liability”); United Products Corp. v. Admiral Tool & Manufacturing Co., 122 F. Supp.2d 560, 564 (E.D. Pa. 2000) (sale of seating on mass transit is not a “product”).

Whitmer v. Bell Telephone Co., 522 A.2d 584, 586 (Pa. Super. 1987), held that use of a pay phone to make a telephone call was not a UCC transaction in “goods.”  “[T]he subject matter of the transaction − the putative good − must be tangible and movable.”  Id. at 587 (citations omitted).

The telephone company, however, provides transmission services, but not the communication to be transmitted.  While the telephone company does provide certain incidental communications (for instance, directory assistance), the predominant nature of the transaction remains the transmission of consumer provided communications from one location to another which is the rendition of a service.  When the transaction involves predominantly the rendition of services, the fact that tangible movable goods may be involved in the performance of services does not bring the contract under the Code.

Id. (emphasis original) (citations omitted).  Plaintiff was merely using, not purchasing, the defendant’s “vast telecommunications network.”  Id. at 589.  At most, plaintiff alleged a non-UCC “lease or bailment,” not the sale of any good.  Id.

In another Pennsylvania UCC case, the Third Circuit distinguished between the “intellectual process” of creating computer software and its “tangible” form “once implanted in a medium.”  Advent Systems Ltd. v. Unisys Corp., 925 F.2d 670, 675 (3d Cir. 1991).  For UCC purposes the latter was a “good,” but the former was not.

An analogy can be drawn to a compact disc recording of an orchestral rendition.  The music is produced by the artistry of musicians and in itself is not a “good,” but when transferred to a laser-readable disc becomes a readily merchantable commodity. Similarly, when a professor delivers a lecture, it is not a good, but, when transcribed as a book, it becomes a good.

Id.  See also Kaplan v. Cablevision of PA, Inc., 671 A.2d 716, 724 (Pa. Super. 1996) (“transmission of cable television programming is not a [UCC] ‘transaction in goods’”; following Whitmer); Kamco Industrial Sales, Inc. v. Lovejoy, Inc., 779 F. Supp.2d 416, 430-32 (E.D. Pa. 2011) (requiring a “tangible good or product” to satisfy the definition of a “retailer” under house accounts statute statute); Rossetti v. Busch Entertainment Corp., 87 F. Supp.2d 415, 417 (E.D. Pa. 2000) (ticket for amusement park ride was not “tangible and movable” and thus not a UCC good).

A.B. vs. Ortho-McNeil-Janssen Pharmaceuticals, 2013 WL 2917651 (Pa. C.P. April 5, 2013), rejected negligence claims that publishers – including the publisher of the well-known Physicians Desk Reference − “undertook” to vet the information they published.  Publishers, even when working for manufacturers, are not liable for publishing allegedly false information:

[Defendant publisher] was not the “gatekeeper” of the publication and distribution of information related to [a product].  The [manufacturer] and independent authors maintained the ultimate discretion in the information included or omitted from [the publisher’s] drafts and thus, were responsible for vetting the medical accuracy of all [product]-related manuscripts, articles and/or posters.

Id. at *9.  Such a duty would be unprecedented, even in the context of medical research:

[O]ur sister states generally find no duty exists between clinical researchers and the consumers in the context of prescription product-liability litigation because independent laboratories have no duty of reasonable care towards parties with which they did not contract.

Id. at *8 (footnote omitted).  Publishers “d[o] not participate in . . . clinical study” of drugs, nor do they have “access to clinical data.”  Id. at *9.  Nor did the publisher “consent[] to monitor the safety data from any [product] study and to alert [the manufacturer] . . . [to] any potential safety concern.”  Id. at *10.  Accord Kreves v. Ortho-McNeil-Janssen Pharmaceuticals, 2013 WL 3480286, at *7-11 (Pa. C.P. June 19, 2013); S.B. v. Janssen, 2013 WL 3286808, at *7-11 (Pa. C.P. June 12, 2013); Banks v. Ortho-McNeil-Janssen Pharmaceuticals, 2013 WL 2321107, at *6-8 (Pa. C.P. April 5, 2013) (all dismissing similar allegations).

Finally, in Anderson v. Tiktok, Inc., 637 F. Supp.3d 276 (E.D. Pa. 2022), design defect and inadequate warning claims directed against an algorithm in a social media website “impermissibly” sought to treat website operator as a “publishers” of the material the algorithm processed.  Id. at 280.  “[S]uch algorithms are “not content in and of themselves.”  Id. The product liability claims were the product of “creative[] labeling” of plaintiff’s claims.  Id.  However, dismissal was ultimately based on §230 preemption and did not reach whether the allegations failed to state a claim.  Id. at *5.

Puerto Rico

We have found nothing in Puerto Rico law addressing whether an intangible, such as electronic data, can be considered a “product” for product liability purposes.

Rhode Island

Rhode Island has a limited product liability statute that does not define “product.”  R.I. Gen. Laws §9-1-32.  The Rhode Island Supreme Court held that a ticket purchase does not support strict liability, either under Restatement Second §402A or warranty law, in Kennedy v. Providence Hockey Club, Inc., 376 A.2d 329 (R.I. 1977).  The plaintiff’s “purchase of a ticket . . . is neither a transaction in goods supporting a breach of warranty claim nor a ‘product’ within the meaning of products liability.  Id. at 333.

Relying on Kennedy, DeFilippo v. National Broadcasting Co., 1980 WL 336092, at *2-3 (R.I. Super. June 8, 1980), held that the “distinction between tangibles and non-tangibles as they relate to the term ‘product’” prevents “a chilling effect on . . . first amendment rights,” since “broadcasters might, out of fear of litigation, undertake sweeping self-censorship.”  Id. at *2-3.  Thus, “television service, considered alone, [i]s not a ‘product.”’  Id. at *2.

[A]n activity which is watched for entertainment or information is not a “product” within the meaning of §402A.  Perhaps this is so because all courts allowing recovery in strict liability have done so only in cases where the plaintiffs have shown a defect in a tangible item or where they have shown that the tangible item was unreasonably dangerous.  The distinction between tangibles and non-tangibles as they relate to the term “product” [i]s recognized.

Id. (citation omitted).  The Rhode Island Supreme Court affirmed in DeFilippo because “allowing recovery . . . would inevitably lead to self-censorship on the part of broadcasters, thus depriving both broadcasters and viewers of freedom and choice.”  DeFilippo v. National Broadcasting Co., 446 A.2d 1036, 1042 (R.I. 1982).

Nor does an advertiser, under Rhode Island law, owe any duty to inspect or ensure the safety of events that it advertises.  Estate of Henault v. American Foam Corp., 2007 WL 9782479, at *2 (D.R.I. Aug. 22, 2007).

South Carolina

South Carolina enacted Restatement §402A verbatim by statute.  S.C. Code §15-73-10.  As such, “Comments to §402A of the Restatement of Torts, Second, are incorporated herein by reference thereto as the legislative intent of this chapter.”  S.C. Code §15-73-30.  We have found nothing in South Carolina law addressing whether an intangible, such as electronic data, can be considered a “product” for product liability purposes.

South Dakota

South Dakota has a limited product liability statute that does not define “product.”  S.D. Cod. Laws §§20-9-9, et seq.  We have found nothing in South Dakota law addressing whether an intangible, such as electronic data, can be considered a “product” for product liability purposes.

Tennessee

Tennessee enacted a product liability statute defining “[p]roduct” as “any tangible object or goods produced.”  Tenn. Code §29-28-102(5).  This definition of “product” is equivalent to the common-law term, “chattel.”  Ladd v. Honda Motor Co., 939 S.W.2d 83, 98 & n.10 (Tenn. App. 1996).  To evade a statute of repose, the plaintiff in Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1135 (6th Cir. 1986), argued that an instruction manual, alone, was a “product” under the Tennessee statute.

We do not think that the Tennessee Supreme Court would interpret the word “product,” as defined and used in the statutory provisions . . ., to include the instruction manual. . . .  [W]hile a failure to warn or provide proper instructions are theories upon which a plaintiff may proceed, the instructions themselves are not a “product” as defined by the act. . . .  [W]e do not agree that the warnings and instructions themselves are a “product” within the meaning of [the statute].  Language of instruction cannot be “defective or unreasonably dangerous” in itself.

Id. at 1135 (citations omitted).

Analogously Bowman v. PHP Cos., 2005 WL 2993902, at *11 (E.D. Tenn. Nov. 8, 2005), held that “product” as used in a commission statute “does not include an intangible item.”

Texas

Texas has a product liability statute that does not define “product.”  Tex. Civ. Prac. & Rem. Code §82.001; cf. Tex. Bus. & Com. Code §17.45(1) (“‘Goods’ means tangible chattels”) (consumer protection statute).  Texas now follows the definition of “product” in Restatement Third §19.  Fresh Coat, Inc. v. K-2, Inc., 318 S.W.3d 893, 897 (Tex. 2010).  Texas implied warranties likewise are dependent on their relationship to “existing tangible goods or property” – “moveable personal property.”  Archibald v. Act III Arabians, 755 S.W.2d 84, 85 (Tex. 1988).  Under the prior Restatement Second §402A:

[A] concept is an intangible which is not a product within the meaning of the Restatement (Second) of Torts.  To impose strict products liability upon [defendant] for the introduction of a concept, under the facts of this case, is contrary to the very essence of a products liability cause of action under Section 402A.

Firestone Steel Products Co. v. Barajas, 927 S.W.2d 608, 616 (Tex. 1996) (citing Way v. Boy Scouts of America, 856 S.W.2d 230 (Tex. App. 1993)).  We discuss Way below.

Applying Texas law, Meador v. Apple, Inc., 911 F.3d 260 (5th Cir. 2018), held that a cellphone’s lack of certain software features could not be a basis of liability.  “[N]o court in the country” had imposed on manufacturers a duty to the world to include software features to prevent texting while driving.  Id. at 265.  Doe v. MySpace, Inc., 474 F. Supp.2d 843, 851 (W.D. Tex. 2007), aff’d, 528 F.3d 413 (5th Cir. 2008), “decline[d] to extend premises liability cases to the internet context particularly where . . . the Defendant provides its service to users for free.  Plaintiff has cited no case law indicating that the duty of a premises owner should extend to a website as a ‘virtual premises.’”  Id. at 851.  In A.B. v. Salesforce.com, Inc., 2021 WL 3616097 (S.D. Tex. March 22, 2021), a defendant that allegedly sold business software to a sex-trafficking website had “no duty to monitor what its customers do with its products post-sale or to prevent them from engaging in criminal acts.” Id. at *4.

Texas also follows the Winter rule precluding tort liability for allegedly false information.  In Way v. Boy Scouts of America, 856 S.W.2d 230 (Tex. App. 1993), information conveyed by a magazine and supplement were not products on which strict liability claims could be based.  “[T]he ideas, thoughts, words, and information conveyed by the magazine and [its] supplement are not products within the meaning of the Restatement (Second) of Torts.”  Id. at 239 (quoting and following Winter).  Thus, a “product liability theory does not encompass the content of a publication.”  Davidson v. Time Warner, Inc., 1997 WL 405907, at *14 (S.D. Tex. March 3, 1997) (music CD) (emphasis original).  While music may be “both disgusting and offensive,” it was protected First Amendment speech.  Id. at *22.  See Eimann v. Soldier of Fortune Magazine, Inc., 880 F.2d 830, 838 (5th Cir. 1989) (“Given the pervasiveness of advertising in our society and the important role it plays, we decline to impose on publishers the obligation to reject all ambiguous advertisements for products or services that might pose a threat of harm.”) (applying Texas law); Reynolds v. Murphy, 188 S.W.3d 252, 264 (Tex. App. 2006) (“publishers of subscription newsletters” such as “the one at issue here could not be held liable for negligence and negligent misrepresentation”); Orozco v. Dallas Morning News, Inc., 975 S.W.2d 392, 396 (Tex. App. 1998) (no liability for newspaper reporting of criminal activity due to “society’s keen interest in a press free to report newsworthy facts”); Herceg v. Hustler Magazine, Inc., 565 F. Supp. 802, 803-04 (S.D. Tex. 1983) (product liability law “is limited to the physical properties of [products], not the material communicated”).

Utah

In Legal Tender Services PLLC v. Bank of American Fork, 506 P.3d 1211, 1220 (Utah App. 2022), Utah law followed the exclusion of intangible items from the definition of “product” in Restatement Third §19(a).  Id. at 1220.  The plaintiff in Legal Tender sought to hold the owner of an automated “online payment portal” strictly liable under Utah’s product liability statute, Utah Code §§78B-6-701, et seq., which did not define “product.”  Id. at 1219.

[T]he portal isn’t a “movable” good, nor is it an item of “tangible personal property.” Rather, it’s an online portal that is accessed by following the “website link” provided by [the] service provider, and no separate hardware or software needed to access the Service was part of the Agreement between the parties.  For this reason alone, it likely does not qualify as a good under the UCC or a product for purposes of a products liability claim.

Id. at 1220 (citations and quotation marks omitted).

A Utah court has also acknowledged the policy interests that weigh against imposing liability on the transmission of intangible ideas.  In Rosenberg v. Harwood, 2011 WL 3153314, at *1 (Utah Dist. May 27, 2011), a negligence claim attacking the directions online mapping service provided the plaintiff was dismissed because “where a publisher or other information provider publishes information to the general public, courts have regularly held that they owed no duty to the public at large.”  Id. at *3.

[Defendant] is clearly a publisher because it makes all of the information on the Google Maps service available to the public worldwide, and the fact that a user of the Google Maps service obtains customized search results does not remove the protections afforded to any other publisher of information to the public.  Having established that Google is a publisher, it is apparent that the same policy considerations are present here as those in other cases that have rejected imposing a duty on publishers for providing faulty information.

Id. at *5 (citations omitted).

Vermont

We have found nothing in Vermont law addressing whether an intangible, such as electronic data, can be considered a “product” for product liability purposes.

Virginia

Virginia is another state that does not recognize strict products liability.  In a recent, non-precedential Virginia negligence action, Lowe v. Cerner Corp., 2022 WL 17269066 (4th Cir. Nov. 29, 2022), reversed summary judgment against a negligent design claim asserted against the manufacturer “of a software system used for entry of medical orders for patient care.”  Id. at *1.  In the absence of any strict liability claim, Lowe did not evaluate whether product liability theories should apply to intangible items such as software.  Rather, Lowe relied on broadly applicable negligence principles involving consumer expectation and compliance with industry standards, as it would for any run-of-the-mill tangible product.  Id. at *6-7 (citing Alevromagiros v. Hechinger Co., 993 F.2d 417 (4th Cir. 1993) (applying Virginia law)), for “the applicability of these standards to the design of software” and a “reasonable consumer expectations” test for negligent design).  The plaintiff “bore the burden of producing sufficient evidence from which a jury could find that [defendant’s] negligently designed software was a proximate cause of [plaintiff’s] injuries.”  Id. at *9.  Lowe does not indicate that the defendant made any arguments based on the intangible nature of its software.

In other Virginia law cases, creation and delivery of bespoke “prototype” software was not a contract for UCC goods in NAC Consulting, LLC v. 3Advance, LLC, 2023 WL 159768, at *7 (E.D. Va. Jan. 11, 2023) (“specially-designed software is better viewed as a service, not a good”).  America Online, Inc. v. St. Paul Mercury Insurance., 207 F. Supp.2d 459, 467 (E.D. Va. 2002), held that computer files were not covered by an insurance policy because “[t]he plain and ordinary meaning of the word tangible is something that is capable of being touched or perceptible to the senses.”  Id. at 467.  “Computer data, software and systems do not have or possess physical form and are therefore not tangible property.”  Id.

Virgin Islands

A Virgin Islands court adopted the “product” definition of Restatement Third §19(a) in Hartzog v. United Corp., 2011 WL 11570002, at *15 (V.I. Super. Sept. 6, 2011) (“A product is defined as ‘tangible personal property distributed commercially for use or consumption.’”).

Washington

In Washington, the product liability statute defines a “[p]roduct” as “any object possessing intrinsic value” and “capable of delivery.”  Rev. Code Wash. §7.72.010(3).  Services are not “products” under this definition.  Berschauer/Phillips Construction Co. v. Seattle School District No. 1, 881 P.2d 986, 990 n.1 (Wash. 1994).  In Quinteros v. InnoGames, 2022 WL 898560 (W.D. Wash. March 28, 2022), affirmed in pertinent part, reversed in part on other grounds, 2023 WL 9116592 (9th Cir. Jan. 8, 2024), utilizing in part the Restatement Third §19 definition of product, “agreed” that:

[O]nline games are not subject to Washington’s products liability law.  RCW Section 7.72.010 defines “Product” as “any object possessing intrinsic value, capable of delivery either as an assembled whole or as a component part or parts, and produced for introduction into trade or commerce.”  [Defendant’s game] is software as a service, not an “object,” hence Plaintiff’s product liability claim must fail as a matter of law.

Id. at *7 (string cite, including Third Restatement, omitted).  See McCarthy v. Amazon.com, Inc., 2023 WL 4201745, at *5 n.8 (W.D. Wash. June 27, 2023) (“the court agrees . . . that Amazon.com, which is a website, is not a ‘product’ because it is not a tangible ‘object’ that is ‘capable of delivery’”) (citation and quotation marks omitted); Burghart v. South Correctional Entity, 2023 WL 1766258, at *3 (W.D. Wash. Feb. 3, 2023) (strict liability “does not apply to software services as a matter of law”).  Cf. M.L. v. Craigslist Inc., 2020 WL 6434845, at *13 (Mag. W.D. Wash. April 17, 2020) (no negligence “general duty to ensure that their website does not endanger minors”), adopted, 2020 WL 5494903 (W.D. Wash. Sept. 11, 2020).

In addition, a Washington court has recognized that “video and computer games are expressive speech that is entitled to the full protections of the First Amendment.  Video Software Dealers Ass’n v. Maleng, 325 F. Supp.2d 1180, 1186 (W.D. Wash. 2004).

West Virginia

West Virginia has a limited product liability statute providing that “‘[p]roduct’ means any tangible object, article or good,” W. Va. Code §55-7-31(a)(4), which has not been judicially interpreted.  Under West Virginia law, there being “no transaction in tangible goods between the Plaintiff and the Defendants” precluded any claim under the UCC, Miller v. JP Morgan Chase Bank, N.A., 2018 WL 5046080, at *6 (S.D.W. Va. Oct. 16, 2018).

Wisconsin

The Wisconsin product liability statute does not define “product.”  Wis. Stat. §895.046.  Applying Wisconsin law, Kawczynski v. American College of Cardiology, 2016 WL 2770552 (W.D. Wis. May 13, 2016), aff’d on irrelevant grounds, 670 F. Appx. 398 (7th Cir. 2016), followed the “product” definition in Restatement Third §19(a) to hold that medical “cardiology treatment guidelines were not “products” subject to strict liability.  Id. at *2.

The treatment guidelines that defendants promulgated and plaintiff contends are defective do not qualify as “products” for purposes of the statute.  The focus of products liability law is on tangible items, not intangible ideas or abstract concepts such as the guidelines at issue here.

Id. (Restatement Third quotation omitted).

Two Wisconsin appellate decisions, Micro-Managers, Inc. v. Gregory, 434 N.W.2d 97, 100, 102 (Wis. App. 1988), and Ringtrue, Inc. v. McWethy, 2000 WL 387156, at *3-4 (Wis. App. April 18, 2000) (in table at 616 N.W.2d 524), have held that contracts to design and develop bespoke computer software are not contracts for sale of goods that implicate the UCC.  Cf. Marquette University v. Kuali, Inc., 584 F. Supp.3d 720, 728-29 (E.D. Wis. 2022) (cloud computing contract “based on selling services to support a ‘free’ good” not within UCC); Springbrook Software, Inc. v. Douglas County, 2015 WL 2248449, at *13 (W.D. Wis. May 13, 2015) (contract involving multiple, identical “software package[s]” governed by UCC).

Wyoming

In Continental Insurance v. Page Engineering Co., 783 P.2d 641, 663 (Wyo. 1989), the Wyoming Supreme Court pointed out that in “cause[s] of action derived from product liability cases, the existence of the sale of the tangible object subjects the parties to duties that are independent of the sales transaction.”  Id. at 663.  Beyond that reference, we have found nothing in Wyoming law addressing whether an intangible, such as electronic data, can be considered a “product” for product liability purposes.