Earlier quoted context omitted.
I'm more disturbed by the parts of the article which say that he never agreed to a forced arbitration clause in the first place because it wasn't in the ToS when he paid, but the judge decided to go with the later ToS anyway: > According to Lord, the terms of service when he made the initial pledge aren’t the same terms of service they are today. The original terms of service, according to RSI’s own records, make no…
When you make a new purchase, you agree to the updated terms of service. This is pretty standard practice. (Steam makes you press a renewed terms of service agreement on every purchase, for example.) When you agree to updated terms, it generally replaces your prior agreement with a company. Had he not agreed to the new terms, his account and the purchases tied to it would still be under the old terms. The whole EULA/…
>"Yes your honor, this did not apply at the time of pledge, but we updated the TOS, and he specifically agreed to updated TOS as part of his playing the beta test and here is the timestamp when he did so through his account."
well, that'd still be plenty good reason to discuss how the modern practices of EULAs and TOS clearly circumvent the spirit of contract law, but it wouldn't be a new practice at all either. And it seems like it'd be a pretty straightforward, slam dunk thing to say too.
The article though doesn't make it sound like that was the argument or came up. Which might be because we're getting it 2nd or 3rd hand, so we shouldn't necessarily jump to conclusions. But if the judge arbitrarily decided it applied retroactively rather then "it applies because he agreed it would at a later date" that'd absolutely be pretty scary.