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US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

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Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#141

Post by impossiblefork »

close04 wrote: post #105
impossiblefork wrote: post #76

Earlier quoted context omitted.

>The key thing well regulated places like Sweden get right, is that in consumer contracts you have minimum bars that you must meet regardless of what you can get the consumer to agree to. So, for instance, return policies, for goods bought online have minimum standards they must meet. Yes, but Swedish contract law actually is like this. A contract is a specific agreement, it can never be "Oh well, you can add provisi…

The workaround is that each change is a new contract. If you don’t accept the changes the existing contract ends and that’s it. But the power is mostly with the provider, you need it more than it needs you, so you will want the new contract. You can also ask and negotiate terms and the provider has the same choice. If there’s healthy competition you have some power, otherwise you are out of luck.

Yes, you have to enter into a new contract with the person you want a new contract with and he has to actually agree, as in any contract negotiation.

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#143

Post by ef2k »

This would make more sense if email was 100% guaranteed to be delivered. Not sure if this angle was argued, but just like regular mail, just because something was claimed to be delivered is not enough to prove that it was, hence the existence (in the US) of certified mail and signature return receipts.

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#144

Post by jtbayly »

repelsteeltje wrote: post #115
close04 wrote: post #105

Earlier quoted context omitted.

The workaround is that each change is a new contract. If you don’t accept the changes the existing contract ends and that’s it. But the power is mostly with the provider, you need it more than it needs you, so you will want the new contract. You can also ask and negotiate terms and the provider has the same choice. If there’s healthy competition you have some power, otherwise you are out of luck.

But that would supposed need to have some explicit text stating the expiration of that contract. An existing contract can't just end when provider feels like it, I suppose?

I would guess it can end the moment either party wants, unless a length was established. At the end of the month or year you’ve paid for, perhaps with a minimum notice, would make sense. Otherwise the provider can refuse to let you stop paying, citing the contract.

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#145

Post by stinkbeetle »

short_sells_poo wrote: post #114
stinkbeetle wrote: post #102

Earlier quoted context omitted.

But some terms were claimed to be reasonable. If power being disproportionate is sufficient to void terms, why not those terms too? > The government is not there just to enforce laws, but also to legislate such that the scales are balanced. Otherwise we may as well live in a dictatorship. Should the state just prohibit all agreements between two parties unless the state's adjudicator decides they are exactly equal in…

> Should the state just prohibit all agreements between two parties unless the state's adjudicator decides they are exactly equal in "power" and permits it. This is a strawman and you know it. Please at least make an attempt to argue in good faith, otherwise there's no point. Of course there should be a reasonable middle-ground. The current situation with completely bogus ToS is not it. Let me turn it around: should…

> This is a strawman and you know it.

Uh yes? And you clearly know it too. It was a bit like your McDonalds strawman.

> Please at least make an attempt to argue in good faith, otherwise there's no point.

No need to get in a huff when we obviously both know what we're talking about. It's not conducive to the discussion.

> Of course there should be a reasonable middle-ground. The current situation with completely bogus ToS is not it.

I don't know exactly what the current situation with completely bogus ToS is, I'm willing to accept it could be adjusted. I was asking specifically about your proposed adjustment to it though. Your reasons for the new framework you suggested.

> Let me turn it around: should the state just abandon it's duty of creating an fair and equal playing field between large corporations and clients and let society devolve into a corporatocracy where laws are enforced purely to further corporate interests? Because that's exactly what you seem to be suggesting.

That isn't what I was suggesting. I was asking you how you came to your conclusion in the previous post. (EDIT: Sorry you did not conclude that, the grandparent did the parent of my first post you replied to, but you posted seemingly in support)

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#146

Post by alistairSH »

stinkbeetle wrote: post #84
danlitt wrote: post #59

The entire notion of being allowed to enforce arbitrary terms of service is absurd. There are probably a handful of terms everyone agrees are reasonable (no attempted hacking, rate limits, do not break laws) and everything else should be unenforceable. Especially garbage like what you're allowed to do with the stuff you get from the service even while not using the service , or about setting up competing products. It…

> The entire notion of being allowed to enforce arbitrary terms of service is absurd. There are probably a handful of terms everyone agrees are reasonable (no attempted hacking, rate limits, do not break laws) and everything else should be unenforceable. Why? Why should a government prohibit private parties from agreeing to anything other than those 3 things? > Especially garbage like what you're allowed to do with t…

Why? Because ToS as they exist today are unreasonably long and not understandable by the average person. Yet nearly everything we buy today comes with a complex ToS.

Added to that is the forced arbitration clauses they exist in most ToS. See the example about Disney getting out of a wrongful death suit at a theme park beciaee the plaintiff had a free Disney account for a PS5 that he bought many years earlier.

Tl;dr - buying a piece of software or home appliance shouldn’t come with more strings attached than buying a piece of real estate.

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#147

Post by alistairSH »

Lyrex wrote: post #91
carefree-bob wrote: post #79

Earlier quoted context omitted.

The other side of this is that companies do want to change their T&C from time to time, so what do they do, force you to quit and then sign up again? That adds a lot of friction. Or do they tag things and say "Customer X signed up on this date, so he is bound by T&C number 12, whereas this other customer signed up a year later and is bound by T&C number 13". That seems unwieldy since there is a common infrastructure.…

I work for a digital bank and the versioning is essentially exactly how we handle T&Cs. The user accepts a certain version of some terms, and if we launch for example a new product that requires changed T&Cs then we ask the user to accept them if they want to use the new product. If they don't, well, then they just keep using the existing offering without accepting any new terms.

That’s sounds reasonable for services-based consumer offerings. Which would include consumer SaaS services.

Where it gets a little muddy for me is hardware with services attached (a new EV, etc)… you pay $60k for a car, it really shouldn’t be possible to force a new ToS on something they has physical ownership. And definitely not possible to brick or de-option the car due to refusal to accept new ToS.

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#148

Post by tkel »

JR1427 wrote: post #134

The current state of terms and conditions is a clear failure of modern law. No one is reading them, and it would be practically impossible to do so. Signing something you cannot practically read and understand clearly does not mean you actually accept them. How can we wake people up to this absurdity? The law should exist to help society. When it is not helping, reform it.

What gets enshrined into law is a function of what powerful people in the society want enshrined. And these companies, their executives, and their beneficiaries are infinitely more powerful than individual users. In many ways the legal system is a compromise that companies tacitly agree to in order for legal/police protection in exchange for not hiring mercenaries and rebelling, as they do in some countries. The legal system has to serve their interests, or else powerful people would revolt. When they do revolt either violently or nonviolently, the laws shift and a new compromise is achieved. Or they just choose not to follow the laws and the state doesn't call them on their bluff, or if they do, it is only an entry-point to negotiation. Thus the current state of laws are a continuum of compromises between power players.

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#149

Post by SkyBelow »

jdiff wrote: post #138
misnome wrote: post #132

Earlier quoted context omitted.

> It's like McDonald's selling you a burger and telling you how to eat it. Or Disney telling you they are exempt from killing someone in their theme park restaurants because you signed up to Disney+… https://www.bbc.co.uk/news/articles/c8jl0ekjr0go

It gets worse with added context: signed up for a free trial of Disney+ on a PS5 many years ago.

It gets worse x2: the executor of the estate having signed up for Disney+ means the estate of the deceased loses the right to sue, despite the deceased having never signed up. Like a client being bound by all unrelated legal agreements their lawyer entered into.

(If I recall the details correct, it has been a while since I read into that case.)

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#150

Post by gopher_space »

close04 wrote: post #35
bradley13 wrote: post #24

IMHO the problem is allowing changes to terms and conditions for existing contracts. If I have a contract with a company, that contract was made under existing T&C. The company should not be able to change those conditions without my explicit permission. Denying me service if I disagree should not be a valid option. I get this periodically on our overly-computerized car: Here are new T&C, click yes to agree. You can…

But the “initial” T&C allows them to cancel your contract unless there’s a minimum contractual period. They can take that opportunity to force you into a deal change. The change is that now just using the service is considered consent. The real problem is that the law allows this power imbalance and doesn’t tip the scales to even it out for the end user. That for me is evidence that the law is made for the companies…

Strike out the parts that you don’t like and email it to legal@ Include a cute little JavaScript cat animation to brighten their day.
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