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Dropbox Developer Terms and Conditions

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Re: Dropbox Developer Terms and Conditions

#41

Post by pktgen »

DannyBee wrote: post #35
eganist wrote: post #8

Lawyers willing to opine: > 14.5. NO CLASS ACTIONS. Developer may only resolve disputes with Dropbox on an individual basis and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. Is this exact thing what's being considered in some of the more recent Supreme Court cases…

Lawyer here. Some of those cases are about the NLRB's authority, not anything else. I didn't look up all of them. Past that so, as far as i know, attempting to waive class arbitration is untested against an explicit state policy, and i have doubts it would survive. The only case about this so far is whether class action arbitration waivers are enforceable in general in the face of it being "too expensive" to arbitrat…

> Thus, a state law saying "arbitration is awesome, but banning class arbitration is against our public policy", if they exist, should be valid. Preemption must be very clear.

Concepcion seems to make it very clear that such a rule would be preempted by the FAA. The nonsensical reasoning in Concepcion applies just the same if the rule invalidates class waivers specifically (that is, permits the arbitration agreement to be enforced but strikes only the part prohibiting class actions, which would result in arbitration proceeding on a class basis) as it does if the rule invalidates the entire arbitration agreement (as the CA Supreme Court rule did).

Re: Dropbox Developer Terms and Conditions

#42

Post by sigstoat »

wfo wrote: post #34
sigstoat wrote: post #30

Earlier quoted context omitted.

> Seems absurd to me. i'm really interested; what do you think the alternative is? would you be happier if you had to mail in a signed copy of the contract?

You are very correct, the fundamental problem here is not that people don't read the EULA, it is that the world "agree" is not meaningful in this context, there is no equitable power relationship between you and the company you are "agreeing" with, they can insert any demand they wish and you have no ability to negotiate or power in the discussion. You should not have to read the EULAs, because companies should not b…

> they can insert any demand they wish and you have no ability to negotiate or power in the discussion

you have no ability to negotiate because they have something you want, and you're unwilling to give them anything they might want. would a meaningful fraction of the population pay even $1/mo to receive better contractual terms on their dropbox account?

without looking at it, i expect that the terms for S3 look quite a bit better.

> You should not have to read the EULAs, because companies should not be allowed to require that you waive your fundamental rights like this as a precondition of using their service

whoa there. there's allll sorts of stuff that can go into a contract besides waivers of "fundamental rights", that you'd really not want to agree to willy nilly.

Re: Dropbox Developer Terms and Conditions

#43

Post by pktgen »

DannyBee wrote: post #35
eganist wrote: post #8

Lawyers willing to opine: > 14.5. NO CLASS ACTIONS. Developer may only resolve disputes with Dropbox on an individual basis and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. Is this exact thing what's being considered in some of the more recent Supreme Court cases…

Lawyer here. Some of those cases are about the NLRB's authority, not anything else. I didn't look up all of them. Past that so, as far as i know, attempting to waive class arbitration is untested against an explicit state policy, and i have doubts it would survive. The only case about this so far is whether class action arbitration waivers are enforceable in general in the face of it being "too expensive" to arbitrat…

> I pointed out that class action/courts generally at least required a licensed lawyer to maintain and work on the suit, which was expensive, whereas arbitration could be done by lay people, and that he was essentially betting that nobody could make it cost effective to have a paralegal or someone manage fifty arbitrations at once, or a class arbitration.

This depends on the state. Some states still consider that to be unauthorized practice of law, even in arbitration.

Even if a law firm wants to manage hundreds of individual arbitrations, finding individual people to opt in makes that very difficult. In consumer cases, the harm to individual consumers is often very small. The law firm would have to advertise to those consumers somehow and those consumers would have to take the time to opt in and give individual attention to the minimally-valued case - just not very practical or scalable.

Re: Dropbox Developer Terms and Conditions

#44

Post by germanier »

sigstoat wrote: post #30
brndnmtthws wrote: post #13

Earlier quoted context omitted.

Seems absurd to me. Companies could claim they put whatever they want in that text and the burden of proof would lie with the end user.

> Seems absurd to me. i'm really interested; what do you think the alternative is? would you be happier if you had to mail in a signed copy of the contract?

I can give you an example from a very different legal tradition, the German one. Even some in Germany say it goes too far in the other direction but it might be valuable to see what others are doing.

Whenever a contract party uses preformulated clauses (i.e. not negotiated for that specific contract) such as TOS, they are limited in what they are allowed to put in there and any unclear clause is interpreted to their disadvantage. It cannot be unreasonably detrimental or surprising to the other party. For contracts with consumers there is a list of what is definitely considered detrimental. It includes binding arbitration.

Yes, this limits the freedom to conclude contracts. The justification used is that usually the party using preformulated clauses has much larger negotiating power and such a relationship is usually not made of equals.

Re: Dropbox Developer Terms and Conditions

#45

Post by DannyBee »

pktgen wrote: post #41
DannyBee wrote: post #35

Earlier quoted context omitted.

Lawyer here. Some of those cases are about the NLRB's authority, not anything else. I didn't look up all of them. Past that so, as far as i know, attempting to waive class arbitration is untested against an explicit state policy, and i have doubts it would survive. The only case about this so far is whether class action arbitration waivers are enforceable in general in the face of it being "too expensive" to arbitrat…

> Thus, a state law saying "arbitration is awesome, but banning class arbitration is against our public policy", if they exist, should be valid. Preemption must be very clear. Concepcion seems to make it very clear that such a rule would be preempted by the FAA. The nonsensical reasoning in Concepcion applies just the same if the rule invalidates class waivers specifically (that is, permits the arbitration agreement…

"Concepcion seems to make it very clear that such a rule would be preempted by the FAA. "

I've read it forward and backwards and i don't see it.

"The nonsensical reasoning in Concepcion applies just the same if the rule invalidates class waivers specifically (that is, permits the arbitration agreement to be enforced but strikes only the part prohibiting class actions, which would result in arbitration proceeding on a class basis) as it does if the rule invalidates the entire arbitration agreement (as the CA Supreme Court rule did)."

Again, i'm going to disagree.

There is a huge difference between proscribing action and proscribing form of action, and Conception's reasoning seems pretty wholly inapplicable to the latter, only the former. It also does not, in any way, deal with the preemption issue that would occur, and every case i can find on the other side of this seems to say they would allow states to constrain the form.

  The court reasoned that the purpose of the FAA was
  "'not [to] mandate the arbitration of all claims, but merely 
  the enforcement . . . of privately negotiated arbitration 
  agreements.'"Id. at 70 (quoting Dean Witter Reynolds Inc. v.
  Byrd, 470 U.S. 213, 470 U. S. 219 (1985)).
  While the FAA therefore preempts application of state laws 
  which render arbitration  agreements unenforceable, "[i]t 
  does not follow, however, that the federal law has 
  preclusive effect in a case where the parties have chosen in 
  their [arbitration] agreement to abide by state rules.""
...

  Unlike its federal counterpart, the California Arbitration 
  Act, Cal.Civ.Proc.Code Ann. § 1280 et seq. (West 1982), 
  contains a provision allowing a court to stay arbitration 
  pending resolution of related litigation. We hold that 
  application of the California statute is not preempted by 
  the Federal Arbitration Act (FAA or Act), 9 U.S.C. § 1 et 
  seq., in a case where the parties have agreed that their 
  arbitration agreement will be governed by the law of 
  California.
See Volt Inf. Sciences v. Stanford Univ., 489 U.S. 468 (1989)

Where california's "form of arbitration" requirements were specifically affirmed.

Re: Dropbox Developer Terms and Conditions

#48

Post by prawn »

sigstoat wrote: post #30
brndnmtthws wrote: post #13

Earlier quoted context omitted.

Seems absurd to me. Companies could claim they put whatever they want in that text and the burden of proof would lie with the end user.

> Seems absurd to me. i'm really interested; what do you think the alternative is? would you be happier if you had to mail in a signed copy of the contract?

I've wondered if there couldn't be a reasonable superset of base statements in simple English that had a fuller legal meaning, but were generally consumer friendly and agreed upon by a council of business and government. These could be read and agreed to fairly quickly.

(Effectively the law, but as written for Simple English Wikipedia; and much more limited in length.)

As has been said, reading every legal document in the footer of every site/product is just not practical. The vast, vast majority of consumers are absolutely at the mercy of every company they deal with.

Re: Dropbox Developer Terms and Conditions

#49

Post by Paul-ish »

jiaweihli wrote: post #38
Paul-ish wrote: post #27

Earlier quoted context omitted.

Maybe someone could start a service that automatically opts them out from arbitration clauses. Extra nice if it will send snail mail for the TOSes that require snail mail opt out.

But how much would you or others pay for such a service, on a monthly basis?

If a lot of places required snail mail, you could charge to send that. Offer to do digital opt out free as a sort of trial. If there aren't many snail mail opt outs, then I don't see a way to make money from it unless you have it as a loss leader for a legal services automation company.
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