This distinction has historically shielded software developers and digital platform providers from the strict liability claims that have long haunted traditional product manufacturers. But recent legal developments suggest that line is beginning to blur, with significant implications for companies in life sciences, digital health and consumer technology.

The legal landscape is shifting.

Courts have traditionally been reluctant to treat software as a product for purposes of strict liability. The prevailing rationale is that software is intangible, often licensed rather than sold, and its defects tend to resemble service failures or contract breaches rather than manufacturing or design flaws.

This view, reinforced by the Restatement (Third) of Torts definition of "product" as tangible personal property, has led many courts to dismiss product liability claims against software providers.

But as software and artificial intelligence have become embedded in everything from diagnostic tools to ride-hailing apps, courts are rethinking that approach. A recent wave of litigation against social media platforms, AI chatbot developers and ride-hailing companies has prompted courts to confront a new question: Can — and should — certain software features be treated as products under tort law?

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