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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]

#411

Post by fc417fc802 »

palmotea wrote: post #323
falcor84 wrote: post #313

Earlier quoted context omitted.

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.

Despite sounding absurd I think that would actually work really well. It would make it functionally impossible to include arcane BS without driving off customers while also filtering out people too stupid to be trusted with any sort of online account.

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

#412

Post by fc417fc802 »

abighamb wrote: post #327
rootusrootus wrote: post #306

Earlier quoted context omitted.

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…

I figure ToS for physical devices should be blanket outlawed. They're fraught enough for purely online services. Physical devices keep all of that baggage then add additional questions about whether or not I own physical objects that I purchased.

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

#413

Post by 0______0 »

mghackerlady wrote: post #209
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…

I've got a little icon on my desktop bar that gives me a random bash.org quote. God I miss that place

That just makes me sad. We'll never see those days again :(

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

#414

Post by fc417fc802 »

tsimionescu wrote: post #275
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…

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 u…

> You can't seriously claim that you have a right to use, say, YouTube without any restriction whatsoever.

I think it would be reasonable for the regulator to establish hard limits on what any such restrictions are permitted to entail.

You know, basic consumer protection laws.

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

#415

Post by anonym29 »

xnyan wrote: post #410
anonym29 wrote: post #406

Earlier quoted context omitted.

You think that's bad? Imagine being unironically held accountable to the unenumerated terms of a "social contract" that you never even signed or had a right to refuse in the first place.

The difference is that a social contract is a concept and not literal contract. The actual reality behind "the social contract" is simply that people have the capability to act in ways that can and do affect other people. Because of this, most people find that it's beneficial to moderate our actions in relation to other people based on their preferences.

I'm referring to very real obligations that we are all held to under the justification of "the social contract" such as taxation and being drafted into military service, not social niceties.

We are held to these obligations as seriously and as legally as we are held to real contracts, but unlike the bedrock that constitutes the basis for the legitimacy of all real contracts, these obligations are imposed upon us with no opportunity for consideration, consent, or rejection.

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

#416

Post by fc417fc802 »

malfist wrote: post #355
tialaramex wrote: post #266

Earlier quoted context omitted.

The reason for that phrase is that no, Mother Nature's laws are all that matters, unlike our puny laws, hers are inherent properties of the universe, no need for enforcement because you literally can't break them. A court can insist that up is down, but it ain't.

Where, pray tell, do physical laws of nature come into relevance in a discussion about Terms and Agreements?

They come into relevance about the time the phrase "despite what the courts may say" was uttered. The intent behind the phrase "you can pry it from my cold dead hands" is roughly the same.

Of course I think that armed revolution over ToS is utterly laughable. But I'm merely answering your question.

For an example of a situation the phase actually applies to, consider "despite what the courts may say we are removing the flock cameras".

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

#417

Post by wat10000 »

fc417fc802 wrote: post #411
palmotea wrote: post #323

Earlier quoted context omitted.

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.

Despite sounding absurd I think that would actually work really well. It would make it functionally impossible to include arcane BS without driving off customers while also filtering out people too stupid to be trusted with any sort of online account.

I'm reminded of Mitch Hedberg's bit about getting a receipt when buying a donut. "I don't need a receipt for the donut. I'll just give you the money, and you give me the doughnut. End of transaction!"

Why do we need massive TOS for stuff? I'll just give you the money, and you give me the service. End of transaction!

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

#418

Post by fc417fc802 »

wat10000 wrote: post #417
fc417fc802 wrote: post #411

Earlier quoted context omitted.

Despite sounding absurd I think that would actually work really well. It would make it functionally impossible to include arcane BS without driving off customers while also filtering out people too stupid to be trusted with any sort of online account.

I'm reminded of Mitch Hedberg's bit about getting a receipt when buying a donut. "I don't need a receipt for the donut. I'll just give you the money, and you give me the doughnut. End of transaction!" Why do we need massive TOS for stuff? I'll just give you the money, and you give me the service. End of transaction!

Presumably because an ongoing service isn't a clean exchange of physical goods. It's more analogous to a gym membership which definitely does come with a contract.

By eating this donut you agree that we are not responsible for any health problems that might result, either directly or indirectly.

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

#419

Post by dataflow »

hrimfaxi wrote: post #317
quietbritishjim wrote: post #295

Earlier quoted context omitted.

Agreed, but there's no delivered (but not necessarily read) receipt that applies to email so that was closest I could think of that counted. The overall point remains: sending an email, with no further evidence, does not count as proof of delivery (all the way to the inbox).

I see what you mean, and lack of a rejection email from the server is not proof of delivery either. I was looking to things like state process service laws. It doesn't seem like any type of receipt is required for electronic proof of service in California, for instance https://law.justia.com/codes/california/code-ccp/part-2/titl...

I don't know how laws work here but I can't imagine having adequate "proof of service" fully insulates you from all possible claims of non-receipt, especially electronically? Like what if the recipient was in a coma or on active duty in the middle of a war zone or something? There have got to be exceptions here to handle some cases of non-receipt despite proof of delivery, so the question of whether spam classification might be one such exception doesn't seem automatically invalid.

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

#420

Post by klempner »

IAmBroom wrote: post #393
klempner wrote: post #186

Earlier quoted context omitted.

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 Wa…

Except that the theme park did present the restaurant as being part of the park, which makes it quite reasonable to hold the theme park responsible financially for the entire debacle. If a chainsaw juggler on a cruise ship cuts my dad in half while he's sleeping on his deck chair, "That entertainer was not a direct employee of Royal Caribbean" will hold exactly zero water in determining liability. All arguments were…

There are very substantial differences between your chainsaw juggler scenario and the Disney one. Notably, the cruise ship is access controlled and your dad didn't actively engage with the chainsaw juggler.

To be clear, this isn't part of Magic Kingdom or one of the proper Disney theme parks. This is a shopping area, open to the public without admission.

For a closer scenario: the cruise ship docks at one of its stops for a day. The area around where the ship docks is owned by Royal Caribbean but open to the public. Most of the stores are privately owned and operated, leasing space from Royal Caribbean. One of those stores is a theater that runs a chainsaw juggling show. Royal Caribbean's website/app includes the full schedule of that theater and highlights that show as perfectly-safe-we-assure-you. Your dad attends that show and gets bisected.

The key point here, entirely not captured by your scenario: the theory making Disney plausibly liable is that Disney's own online services presented this restaurant and its menus which made the plaintiff believe that the restaurant was subject to Disney's allergy standards. It is not at all unreasonable to say that EULAs for those online services are relevant to this dispute.

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