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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]

#301

Post by stinkbeetle »

danlitt wrote: post #108
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? > I'm not saying any term should be enforceable. Contract law has a long history against that. I just wonder how and where you draw the line and what existing law is insufficient. This is not a magic list of 3 things that I think is complete. I think there is a compromise between allowing companies to add arbitrary…

> This is not a magic list of 3 things that I think is complete.

Okay, but you do think it should be an extremely limited scope of things along those lines that parties may form contractual agreements around. It's just such a radical idea that I was hoping to hear some interesting reasoning behind it. If it's just things seem like they might be more pleasant if we did that, then sure thing that's great, certainly would be nice if things were more pleasant we can agree on that.

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

#302

Post by dataflow »

handoflixue wrote: post #21
dataflow wrote: post #4

Fundamentally, the court seems to be treating this identically to a scenario where the user was ignorant and failed to read their inbox. The court seems to be completely disregarding that it was misdelivered into spam. The word "spam" doesn't even appear more than twice in the ruling (one of which is in an irrelevant footnote)! Why the heck is the court completely oblivious to that fact when weighing the facts on eac…

>> You'd think a case hinging on a crucial email being sent into spam would at least mention that fact more than once?! > Broad did not locate the Oct. 2023 Notice until January 2024, when she affirmatively searched for the email and found it in her spam folder. I think it's rather relevant that she affirmatively searched for and found the email?

> I think it's rather relevant that she affirmatively searched for and found the email?

It is. There are lots of relevant facts. Did I claim otherwise?

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

#303

Post by wat10000 »

palmotea wrote: post #259
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.

> Right? A “contract” that only one party needs to abide by is not a contract… it’s an abusive relationship. I think you're absolutely right morally, but I think you've made a pretty important technical error: they're not abusive because "only one party needs to abide...by the contract", they're abusive because only one party can unilaterally change the deal . The companies that make these "contracts" can actually fo…

There are plenty of other abusive aspects besides the fact that they can be changed unilaterally.

What I really don't understand is how it's supposed to be a fundamental part of contract law that there's a "meeting of the minds" where both parties agree to the same thing, and there are these click-through agreements that nobody reads, and everybody knows that nobody reads them, but they're still enforceable. I get why there needs to be a general presumption that you've actually read a contract that you've signed, otherwise you'd be flooded with people saying "actually I didn't read that" to get out of contracts they don't like anymore. But that presumption doesn't make any sense when one party doesn't read the contract, the other party knows nobody reads it, and everybody knows nobody reads it, but we all just sort of pretend.

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

#304

Post by buellerbueller »

tkel wrote: post #148
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 lega…

300 billionaire families now fund 19% of US election dollars either directly or via superpac.[1]

[1] https://www.nytimes.com/2026/03/09/us/billionaires-federal-e...

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

#305

Post by dataflow »

nickff wrote: post #31
dataflow wrote: post #4

Fundamentally, the court seems to be treating this identically to a scenario where the user was ignorant and failed to read their inbox. The court seems to be completely disregarding that it was misdelivered into spam. The word "spam" doesn't even appear more than twice in the ruling (one of which is in an irrelevant footnote)! Why the heck is the court completely oblivious to that fact when weighing the facts on eac…

Unless the user’s e-mail was controlled by their counter-party, what folder the message ended up in seems to be irrelevant to me. The user is the one who selected the e-mail inbox service provider, and has some degree of control over message categorization.

> Unless the user’s e-mail was controlled by their counter-party, what folder the message ended up in seems to be irrelevant to me.

No, you're even harsher than the court. The court explicitly looked at common practices by consumers, not just who-picked-what or who-controlled-what:

>> Because Tile should have known that at least some of its users do not closely monitor email, and Tile should have furnished additional notices, this factor weighs against finding inquiry notice.

The court explicitly said Tile was responsible for making sure people read what it sends, and you're disagreeing with it! Clearly that's relevant!

The court somehow just failed to look at the spam classification question at all, which is baffling. They could've looked at the spam classification and said something similar here, yet they didn't. Instead they ruled as if it's the same situation as one where 100% of the problem is due to the user's negligence, which it clearly isn't.

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

#306

Post by rootusrootus »

mox1 wrote: post #285
parineum wrote: post #278

Earlier quoted context omitted.

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

What happens when Ford updates the ToS on my vehicle (via an OTA update) and I cannot see the backup camera until I "accept"? (Insert about 1000 other examples of very awkward ToS updates)

You refuse the update and continue using the car with the features you paid for. The ToS agreement comes before the update, not after.

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

#307

Post by dataflow »

thaumasiotes wrote: post #51
dataflow wrote: post #4

Fundamentally, the court seems to be treating this identically to a scenario where the user was ignorant and failed to read their inbox. The court seems to be completely disregarding that it was misdelivered into spam. The word "spam" doesn't even appear more than twice in the ruling (one of which is in an irrelevant footnote)! Why the heck is the court completely oblivious to that fact when weighing the facts on eac…

> The court seems to be completely disregarding that it was misdelivered into spam. Spam categorization isn't a delivery issue. The delivery is the same whether you, upon taking delivery, toss the message into a bin labeled "spam" or one labeled "inbox".

> Spam categorization isn't a delivery issue. The delivery is the same whether you, upon taking delivery, toss the message into a bin labeled "spam" or one labeled "inbox".

You think she marked it as spam before reading it rather than the courier?

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

#308

Post by amiga386 »

stinkbeetle wrote: post #272
amiga386 wrote: post #106

Earlier quoted context omitted.

> 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 governme…

The GP alluded to "a handful of terms everyone agrees are reasonable". Regardless of what those are, their hypothetical definition makes them implicitly reasonable. You can circularly reason that these hypothetical univerally-reasonable terms are univerally-reasonable because it is impossible to abuse them with a severe power imbalance.

Re-reading your post, you appear to be asking if the GP would ban all contract terms that aren't universally-reasonable. I don't think that's what they were saying, and it's not what I'm saying.

The purpose of unconscionability is clear, the question is what findings will trigger it? There is a spectrum of opinion on that. My position would be that, whenever it can be demonstrated by one court that a powerful entity did commit abuse via unconscionable contract terms, it should be noted by other courts and applied equally to other similar entities.

The US courts already do this, but the problem is they tend to take the narrowest possible application, and that's ultimately because they're deferential to the US Congress. They don't want to be making law, they only want to interpret the law they have. They want Congress to make law... but Congress doesn't seem very good at that. Most other country's systems are Roman law systems rather than Common law, which in practise means they tend to update laws and regulations more often, and the courts get their clarifications via updated laws rather than build up centuries of precendent.

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

#309

Post by rootusrootus »

tialaramex wrote: post #260
NoMoreNicksLeft wrote: post #235

Earlier quoted context omitted.

>but I have entered into a contract whereby I am entitled to travel to a distant location. I'm not sure why you drape this in the clothing of "legal contract". If the train fails to take you to your destination, they certainly aren't in breach. It seems really one-sided. Why do they need it to be a contract? Will you come and claw back the fare from them with them having no legal recourse?

In the UK, where I live, it's completely usual to treat this as a contractual obligation. If there's a problem which means the train can't take you there, the operating company will do everything reasonable to achieve the offered service, exactly because otherwise they'd be in breach. Example: there are a series of scheduled trains from London (St Pancras) to Nottingham. One day maintenance works meant the line would…

Taxis for a 2+ hour drive? That's wild. In the US when this happens they just charter a bus or three.

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

#310

Post by consp »

doubled112 wrote: post #174
LunaSea wrote: post #128

Earlier quoted context omitted.

And the US with Oracle famously making it illegal to benchmark the performance of their database.

Didn't Atlassian have a clause in their TOS where you weren't allowed to discuss the performance of their cloud?

... you can say anything about an empty set so when there is no performance ...
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