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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]

#271

Post by remus »

Frieren wrote: post #46
close04 wrote: post #35

Earlier quoted context omitted.

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…

> That for me is evidence that the law is made for the companies (probably by the companies too). Yes, everything is becoming more and more convenient for big corporations while individual citizens need to navigate an ever increasingly complex world. Laws are designed to protect capital not individual citizens nor society. That never ends well.

This is just the reality of the power asymmetry and is exactly the same for small company Vs big company. As a small company your business is just not worth that much to big company, so you choices are accept the terms offered or go elsewhere. Or, in an ideal world, there is a competitor who's found a space in the market offering better terms than big company.

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

#272

Post by stinkbeetle »

amiga386 wrote: post #106
stinkbeetle wrote: post #84

Earlier quoted context omitted.

> 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 should a government prohibit private parties from agreeing to anything other than those 3 things? Because a severe power imbalance allows for abuse, and governments should prohibit such abuse. https://en.wikipedia.org/wiki/Unconscionability

US contract law has the concept of unconscionability already. You're not listening to me, my question is why should those things be allowed but nothing else? "Because a severe power imbalance allows for abuse, and governments should prohibit such abuse." does not address my question because it does not explain why the would-be permitted things are not subject to severe power imbalance or abuse of a type that governments should prohibit.

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

#273

Post by rlpb »

seabass-labrax wrote: post #224
NoMoreNicksLeft wrote: post #207

Earlier quoted context omitted.

>The answer is to enter into as few service contracts as possible. Any contract where the other party performs so little seeking of my agreement (none at all really) that no representative talks to me in person or even electronically in an individual capacity, where no one witnesses me put my mark on the paper or hears by verbal assent, is in fact no contract at all. Despite what the courts may say. Should they say o…

Isn't that a bit extreme? As a counterpoint, I find it useful to be able to pay for a train journey by tapping my card on an electronic reader - no representative of the company is there or otherwise witnesses me doing so - but I have entered into a contract whereby I am entitled to travel to a distant location. And I do want it to be a contract, because the transport company agrees to get me to my destination someho…

There is well established case law on the contract that forms when you buy something from a store (say with cash). There is a contract, on implied terms . I think what we’re talking about here is entering into a contract (or not) on explicit terms dictated by one party where the other party has not explicitly considered them and barely given the opportunity to do so if at all. I don’t think anybody is denying the ability of contracts coming into existence on implied terms.

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

#274

Post by hrimfaxi »

quietbritishjim wrote: post #268
hrimfaxi wrote: post #126

Earlier quoted context omitted.

If registered mail is sufficient and that only requires proof of delivery/receipt, why would the same thing for email be insufficient?

Email with proof of receipt (e.g. Outlook's read receipts) would be fine. But sending an email and hoping for the best doesn't meet that condition.

A read receipt is not proof of receipt but proof that you read it. They are not the same thing. If your office receives registered mail but your secretary threw it away without you reading it, you're still legally served right?

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

#275

Post by tsimionescu »

NoMoreNicksLeft wrote: post #207
everdrive wrote: post #182

Earlier quoted context omitted.

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…

>The answer is to enter into as few service contracts as possible. Any contract where the other party performs so little seeking of my agreement (none at all really) that no representative talks to me in person or even electronically in an individual capacity, where no one witnesses me put my mark on the paper or hears by verbal assent, is in fact no contract at all. Despite what the courts may say. Should they say o…

This is somewhat fair, but only as long as you agree that you then have no right to use these services.

I think there is a big difference between the EULA that comes attached to a product you've already paid for, that represents additional terms to what you had already agreed to when paying, and the T&C of a free service or a subscription, presented before payment.

You can't seriously claim that you have a right to use, say, YouTube without any restriction whatsoever. It is a private service, and you can either use it under the terms and conditions that its private owner establishes, or you can avoid using it at all.

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

#276

Post by Forgeties79 »

dpoloncsak wrote: post #211
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…

Any $10/mo VPN solves this, and probably advertises it as a selling point. Of course, then you're spending $10 to save $10.... I have the whole *arr stack setup with Plex running in the US just fine, but that's for sure not for everyone and was a few headaches to get up and running

Plex is as turnkey as it gets and manually adding content isn't that bad tbh.

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

#277

Post by quesera »

jacquesm wrote: post #152

And courts keep wondering why commoners lose respect for the law. I know a judge and had a couple of really interesting conversations with him. We agreed on lots of things but there was one item that stood out for me that made a massive difference in interpretation: to him the map was the territory, he saw the law as the thing that made the world, not the other way around. I always found that to be extremely interest…

I think it is necessarily symbiotic.

Society coalesces around sets of social expectations (some of which are regulations or laws), and these formalized expectations are a very strong defining factor of society itself.

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

#278

Post by parineum »

thephyber wrote: post #256
killbot5000 wrote: post #251

Earlier quoted context omitted.

Right? A “contract” that only one party needs to abide by is not a contract… it’s an abusive relationship.

If the company violates their ToS, you can take them to court (or arbitration). It is bi-directionally enforced contract, just not a symmetrically beneficial one.

The benefit is the product. If the TOS is onerous, you can not use the product.

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

#279

Post by chrischen »

WarmWash wrote: post #232
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…

>In my book, none of the Hollywood deserves a single cent. It’s an amazing feeling to be in the power to dictate this. Then you don't consume it...you boycott it. Freeloading on honest consumers isn't some kind of moral high ground. If Hollywood is corrupt and full of shitheads, letting someone else pay for your ticket doesn't make you a morally pure viewer. It's fine if you just own that you don't want to pay for wh…

The whole concept of intellectual property rights is a social and legal construct designed to promote innovation in an economy. If you don't care about that, then there really isn't any moral or immoral aspect to it. The immorality of it and associating it with stealing was just MPAA propaganda to try to shame people into paying for stuff.

If I found some DVD lying on the ground and watched it and I didn't pay for it, it's really up to me to decide if I want to pay the creator so they can continue to produce content. If I don't pay then obviously it doesn't help them produce more content... but the consumption of the content itself neither felt nor heard by the creators.

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

#280

Post by danlitt »

stinkbeetle wrote: post #140
danlitt wrote: post #113

Earlier quoted context omitted.

> If power being disproportionate is sufficient to void terms, why not those terms too? Power being disproportionate is obviously not sufficient to void terms - that's not what the comment you're replying to said. It is necessary to void terms when there is a power imbalance. > Should the state just prohibit all agreements between two parties unless the state's adjudicator decides they are exactly equal in "power" an…

> Power being disproportionate is obviously not sufficient to void terms - that's not what the comment you're replying to said. It is necessary to void terms when there is a power imbalance. What are you trying to say here? I didn't claim the previous poster didn't think it was necessary, I was just commenting on the sufficiency part of the claim -- sufficient being a subset of necessary. > This is obviously ridiculo…

> What are you trying to say here? I didn't claim the previous poster didn't think it was necessary, I was just commenting on the sufficiency part of the claim -- sufficient being a subset of necessary.

Sufficient is not a "subset of necessary". "Sufficient" in this context means a reason that voiding terms is justified. There being a power imbalance does not mean that the terms should be voided. If the more powerful party stipulates "You may not continue to use the service if you use it to commit a crime", then nobody would argue that the term must be voided just because the more powerful party stipulated it. That is why when you say "the state's adjudicator decides they are exactly equal in "power" and permits it?" this is neither a reductio ad absurdum nor logically valid. Nobody said or implied that any part of the process should be "void the terms if the parties are not equally powerful". You just made that up.

What they did imply was "if the terms are otherwise not justified, and the parties are not equally powerful, you may have to void the terms". In other words, it would be necessary to void the terms.

> What is ridiculous is that you're pretending not to recognize a reductio ad absurdum

It isn't a reductio ad absurdum, because you took the argument "all TOS terms except these 3 categories should be unenforceable" to the logical extreme of "there should be a state-appointed adjudicator who reviews every contract". I am simply advocating for a particular law that should be published.

> OP made a claim about what terms were "justified" and I'm trying to find out the basis for them.

The background reasoning is that service providers should not be able to dictate your behaviour unless it is behaviour that directly affects the service - either because you're using the service in an unethical way, or you're making the service unreasonably hard to provide, or whatever. It happens to be the case I can only think of a handful of terms that have this property. Maybe there are more.

> It isn't, you're just unable to address it.

I think we agree, I am unable to address such titanic arguments as "many people are subservient". I will meditate on these words.

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