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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]

#181

Post by bentcorner »

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…

Unfortunately the only way this changes is if a company writes a just enough unreasonable ToS, and someone violates it in just the right way and the company decides to enforce said ToS, and the user fights back, and this all ends in court.

I'd be surprised if all those stars align anytime soon.

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

#182

Post by everdrive »

shirro wrote: post #166

There are so many advantages to turning off and disconnecting these days. Avoiding TOS is just a small part. There are too many demands on our attention and our wallets and most of us aren't getting more money or time. I cancelled all the family's streaming services in 2025. Everyone adapted. It turns out a lot of things we are told we need, we really don't. People lived without them as recently as a few years ago. A…

Every single ToS is written to benefit the company, and when necessary, harm the consumer. The answer is to enter into as few service contracts as possible. Use open source software. Control when your software updates. Really, never use the cloud version of anything whatsoever except where unavoidable. (eg: email and such)

They feel like the legal equivalent of Calvin Ball. So long as you just stash it in a ToS, you can apply any stupid rule your lawyers can imagine.

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

#183

Post by patentatt »

lesuorac wrote: post #68
exmadscientist wrote: post #12

For those not familiar with US appeals courts, this is an unpublished order, which means that it's (broadly speaking; there are subtleties) not precedent and applies to this case alone.

Isn't the fact that it applies to _any_ case precedent? Like if you're a lawyer and you read this do you go "My client will never win a case like this?" or do you go "we should go to trial"? Sure you won't get summary judgement but if the courts rule this way once they can rule this way again.

Only if it’s in this district, it has almost no weight in another district. And being unpublished makes it a flimsy argument even in this district.

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

#184

Post by getly_store »

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.

Versioned terms help when changes apply to a product, not the whole platform. For a new product with different rules, require explicit, time-stamped consent before first use; otherwise grandfather users on existing terms. Provide a changelog, a grace period, and an easy opt-out. At Getly, per-product terms and payout rules kept separate can reduce friction.

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

#185

Post by fauigerzigerk »

alpinisme wrote: post #151
stinkbeetle wrote: post #96

Earlier quoted context omitted.

> because ToS have been long used to demand unreasonable things and threaten people with expensive lawsuits. The advantage of companies losing bullying power significantly outweighs the disadvantage of less business freedom Why those in particular though? The criminal law one sure that's a part of contract law already. Why the others? Why not different ones? It was just asserted that those were reasonable and no othe…

The original comment asserted that there are “probably” a finite list of reasonable things everyone could agree on. The examples were parenthetical and surely not meant to be the last word. The point they were making (rightly or wrongly) seems to be that contract law just isn’t the right way of managing consumer-business relationships. I suspect that actually meshes with the intuitions of a broad swath of the populat…

Perhaps there should be a limited set of standard clauses that companies can pick from and that consumers can read and compare like food labels.

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

#186

Post by klempner »

misnome wrote: post #132
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…

> 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

Except it is a stretch to say it is "their theme park restaurant". This story was dramatically oversimplified in the media and Disney's position was nowhere near as unreasonable as everyone understands it to be.

The argument was not "they agreed to a EULA 5 years ago and therefore mandatory arbitration in all disputes with Disney".

This is a privately owned restaurant at a glorified shopping mall within the larger Walt Disney World resort. If you died due to a severe allergic reaction at a normal restaurant in a normal shopping mall in Florida the mall owners would generally not be liable unless there's something else going on.

The theory that Disney is liable here is more than anything based on the *restaurant featuring on their app.* The EULA for *that app* would certainly be relevant to this argument.

Now, the Disney lawyers also tried to argue that the Disney+ EULA would actually (at least plausibly) be relevant. That is more than a bit of a stretch, especially for a free trial from years ago, and I'd be surprised (but IANAL) if such a theory would actually hold up in court. Still, on a spectrum from "person died due to maintenance failure on a Magic Kingdom ride" to "person died from going to a restaurant featured on a Disney+ program", if you're arguing that the Disney+ EULA is relevant, this is a whole lot closer to the latter than the former.

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

#187

Post by dfc »

juleiie wrote: post #177
shirro wrote: post #166

There are so many advantages to turning off and disconnecting these days. Avoiding TOS is just a small part. There are too many demands on our attention and our wallets and most of us aren't getting more money or time. I cancelled all the family's streaming services in 2025. Everyone adapted. It turns out a lot of things we are told we need, we really don't. People lived without them as recently as a few years ago. A…

I don’t live in US or five eyes so I pirate all the stuff basically Scot free. I understand that it’s not so easy for Americans whose internet activity is constantly scrutinized. I’ve had the privilege of choosing exactly who and what I pay. I usually don’t subscribe to any streaming service, but when I do choose to pay for something, my money goes to smaller entities that I don’t actively want to see fail. In my boo…

If you think Hollywood content is worthless why bother pirating it at all? It seems like you would just not consume it.

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

#188

Post by datsci_est_2015 »

shirro wrote: post #166

There are so many advantages to turning off and disconnecting these days. Avoiding TOS is just a small part. There are too many demands on our attention and our wallets and most of us aren't getting more money or time. I cancelled all the family's streaming services in 2025. Everyone adapted. It turns out a lot of things we are told we need, we really don't. People lived without them as recently as a few years ago. A…

This ruling taken in conjunction with “in the future you will own nothing, and you will be happy” paints quite the dystopian picture where not even “turning off and disconnecting” will save you.

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

#189

Post by sethaurus »

carefree-bob wrote: post #79
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…

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.…

> 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.

If the company would like their T&C to carry the force of a binding contract upon me, then yes, keeping track of my agreement seems like the absolute bare minimum they must do.

Either these things are real contracts or they are not. The idea that it's too onerous for a company to keep track of its contractual agreements is absurd. That's giving them all the benefits of a real contract with none of the obligations.

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

#190

Post by juleiie »

05 wrote: post #178
juleiie wrote: post #177

Earlier quoted context omitted.

I don’t live in US or five eyes so I pirate all the stuff basically Scot free. I understand that it’s not so easy for Americans whose internet activity is constantly scrutinized. I’ve had the privilege of choosing exactly who and what I pay. I usually don’t subscribe to any streaming service, but when I do choose to pay for something, my money goes to smaller entities that I don’t actively want to see fail. In my boo…

Surely even the poorest of Americans can pay a couple bux a month for a seedbox?

This is a good question. If it is so cheap and easy then why not? I think it is a matter of american government and corporate terror tactic.

They make these few rare cases when they catch somebody so loud and showy that the rest of the flock prefers to sign all the TOS and don’t have this additional worry. It is a success story of manipulative scare techniques that copyright corpos mastered.

Most people prefer to be civilians than to be anti corporate combatants, even if it is perfectly safe in practice. This is normal.

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