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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]

#321

Post by mxuribe »

CobrastanJorji wrote: post #289
Havoc wrote: post #100

Reminds me of the Sony bash.org joke > I will write on a huge cement block "BY ACCEPTING THIS BRICK THROUGH YOUR WINDOW, YOU ACCEPT IT AS IS AND AGREE TO MY DISCLAIMER OF ALL WARRANTIES, EXPRESS OR IMPLIED, AS WELL AS DISCLAIMERS OF ALL LIABILITY, DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL, THAT MAY ARISE FROM THE INSTALLATION OF THIS BRICK INTO YOUR BUILDING." And then hurl it through the window of a Sony officer…

You joke, but if I email Sony customer support with an updated terms of service that says the service is free now, is that equally legitimate?

IANAL but i think Sony would have had to *first* fully accept the terms initially, and then a brick (or many other delivery mechanisms used to convey "notice") with updated terms i guess would be weirdly acceptable...however, other laws would be broken since its, you know, property damage. But what a story that would be! lol :-)

I hate all these TOS that always favor a company...but what if alot of society started hurling bricks back at tech companies in a sort of retaliation...not unlike Luddites damaging ye old machines?

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

#322

Post by tzs »

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…

> 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.

It also often turns out that when some new way comes along to do something that people like to do, the ways they used to do those things go away. If you don't like the new way you can't go back to how it used to be done.

The last physical media video rental store within a reasonable drive of me closed around 8 years ago. Redbox went away in 2024. There is still rental by mail, but that is slow.

Those who liked being able to be able to rent a movie without planning days ahead are stuck with streaming now.

Another example is cell phones. It used to be that there were pay phones all over the place. Nearly every public place had a payphone nearby. In most cities there was a good chance there was a street payphone on every block, and nearly every restaurant and gas station had one. On freeways there were call boxes to summon help.

Pay phones peaked in the US in 1995. When cell phones went mainstream in the early to mid 2000s, pay phones rapidly went away, and in about 10 years were almost all gone. Around 90% of freeway call boxes also disappeared. They now are mostly only in areas with poor cellular coverage.

If you want to be able to make calls while out and about now doing it the way it was done before cell phones quite likely is not feasible.

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

#323

Post by palmotea »

falcor84 wrote: post #313
wat10000 wrote: post #303

Earlier quoted context omitted.

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 wh…

I particularly love the pretend play of software forcing you to scroll the dozens of pages of contract text all the way to the bottom before the Accept button is enabled. Because obviously the reason I didn't read through the entirety of these eulas before is because I wasn't sure of how scrolling works.

The only way they should be enforceable is if they use that scrolling trick, then quiz you on all the terms (with at least multiple choice), every time the TOS is updated.

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

#324

Post by avs733 »

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.

>If the company violates their ToS, you can take them to court (or arbitration).

This is my favorite...how exactly can I monitor compliance? No evidence of non-compliance - get tossed out of court. No court order for discovery - no ability to monitor/gather evidence compliance.

The idea that this is even a potential for mutuallity on a TOS is just farcical.

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

#325

Post by quickthrowman »

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…

Piracy is dead simple these days. Search for “[media name] free streaming” on Yandex and you get a high quality stream with subtitles and multiple audio choices. This works for most stuff, though not everything is available this way.

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

#327

Post by abighamb »

rootusrootus wrote: post #306
mox1 wrote: post #285

Earlier quoted context omitted.

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.

Often I see a popup to accept TOS after the update, which was run without me agreeing to anything.

At which time the company has unilaterally denied my access to something I already paid for without seeking my affirmative consent.

In theory I could stop whatever I'm doing, go email the company a brief to the point letter indicating they've broken their ToS and are unacceptably impairing my ability to use my property under the contract that I did agree to, and giving them an opportunity to amend their problem and give me a rollback path.

Realistically the outcome of this is a brushoff and needing to file a consumer protection complaint or get a lawyer.

If the feature is something like "my car" I can't afford that opportunity cost and am coerced into accepting their contract by the way they presented the amended terms.

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

#329

Post by kyle-macmillan »

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.

I'm not 100% sure I understand your first question but this opinion is not "precedent" in the legal sense (i.e. future 9th Cir. courts must follow it). Of course, that doesn't mean that it will have zero influence on how future judges may decide similar cases. If a later judge finds the reasoning in this opinion persuasive they are free to adopt it. But they are not bound to adopt the reasoning like they would be if this were a "published" opinion that is precedential.

I'm only a law student and not a practicing lawyer so my intuition for decisions to litigate are not strong. That said, my understanding is that there were some pretty notable assumptions and questionable doctrinal maneuvers in the opinion that a future judge might be hesitant to also adopt. An example of each: (1) the court states that users who submit an email during registration assume they will receive TOS amendments by email and (2) the court doesn't seem to distinguish between TOS formation and amendment. These, and others, might be correct assumptions and reasoning, but the opinion doesn't convince me of that, so maybe another judge wouldn't be convinced either.

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

#330

Post by hirvi74 »

tedggh wrote: post #288
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…

As an avid reader and outdoors enthusiast, I feel there’s a lot of value on “wasting” time with a movie or limited series. Absolutely, there are so many better things to do and experience than watching TV, but no one should be stressing out about maximizing their time doing them. In fact, going against that mindset once in a while, and allowing yourself to not do the thing you think you should be doing, is an experie…

> allowing yourself to not do the thing you think you should be doing, is an experience by itself.

In my life, I have a term for that. It's called everyday.

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