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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]

#421

Post by Forgeties79 »

cityzen wrote: post #206
Forgeties79 wrote: post #173

Earlier quoted context omitted.

I canceled all of our subscriptions about two years ago and set up a Plex server. I don’t love the direction Plex is going in so I’m teeing up to flip to Jellyfin, but still, it has been so much better than dealing with all of these companies and nonsense. I feel like we can’t even call it “advertising“ anymore. It’s such a misnomer. It’s basically data fracking and psychological warfare to make us all into little ad…

I had a lot of issues with plex on Apple TV and switched to Infuse. I haven’t tried jellyfin but figured I would mention it.

Huh that’s surprising. So fer Plex has run on everything I’ve ever encountered

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

#422

Post by cbsmith »

duskdozer wrote: post #62
cbsmith wrote: post #32

Might be fun to take some BSD or MIT licenses and send out e-mails updating them to GPLv3...

No problem - I'll just have my AI copy it to turn it back to MIT :)

Doesn't matter. Under the US Court of Appeals ruling, the agreement to the terms of GPLv3 would apply, at which point all associated software would be subject to GPLv3 terms. Even if one remade everything from scratch with an AI, one would remain subject to the terms of the license.

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

#424

Post by efreak »

Aurornis wrote: post #216
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…

> The entire notion of being allowed to enforce arbitrary terms of service is absurd. ToS can’t enforce completely arbitrary rules. They are still bound by the limitations of the law and the worst they can usually do is terminate your account. > It's like McDonald's selling you a burger and telling you how to eat it. And practically speaking they would be limited to telling you that you’re not welcome to come back an…

I could be wrong, but I believe businesses are generally required to serve the public if they're open to the public, and they can only refuse to serve you for limited reasons such as being disruptive or offensive. I don't think the way someone eats a hamburger is a valid reason to refuse service unless you're a private club (ie not open to the public). Maybe if you're a goop[1] you might get kicked out.

[1]: https://www.gutenberg.org/files/36664/36664-h/36664-h.htm#pa...

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

#425

Post by arthurcolle »

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…

RIP bash.org

Did we ever get a black bar for it?

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

#426

Post by tsimionescu »

fc417fc802 wrote: post #414
tsimionescu wrote: post #275

Earlier quoted context omitted.

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.

Absolutely, but that's a completely different claim than what GP was saying. They were saying that there is no binding agreement that you enter to just by using a product that has T&Cs shown on the screen.

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

#427

Post by stinkbeetle »

joe_mamba wrote: post #286
stinkbeetle wrote: post #257

Earlier quoted context omitted.

Is it your contention that the rest of the world has solved the case of terms of service? That the alleged solution is restricting possible clauses to those OP enumerated? Or that USA does not have any limits or regulations around fairness in contract law? I'm fascinated. > This is one of these cases like gun crime where: This is going off topic but I don't think that's going to go anywhere interesting, so why not...…

>That is perhaps the most recent and dramatic case of a solution to gun crime being found. We can't apply the El Salvador solution because what about the human rights of the violent criminals?!

What's strange is that I have never heard a single "human rights expert", humanitarian lawyer, government, NGO, bureaucrat, or global body say a single word about the flagrant and far more wide spread abuses of the human rights of people who should have the basic right to live unmolested by criminals and under a government system that provides reasonable justice. Not a single one. Turns out that none of them are actually concerned with human rights abuses in the slightest bit, they are concerned only with how human rights abuses can be leveraged for their own gain.

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

#428

Post by qnleigh »

handoflixue wrote: post #332
qnleigh wrote: post #39

Earlier quoted context omitted.

> If you decline the new contract, you're entirely welcome to continue on the old T&C. I think the point of contention here is that in practice, there is no way to continue on the old terms of service/contract. Suppose you're using a note taking app, and one day they update their terms of service to say that they can use your notes to train their AI. "Continued use implies consent," so you are locked into the new ter…

> I think the point of contention here is that in practice, there is no way to continue on the old terms of service/contract. Yeah, because, as I said: the old T&C you agreed to probably include a clause where either party can unilaterally terminate the agreement for any reason, which they can then invoke. So, when they terminate that old contract, it's based entirely on the terms of that old contract. You agreed to…

I don't know where to draw the line, but if I buy a phone for $1000, I don't think the company should be able to change their terms of service on me the next day.

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

#430

Post by shakna »

handoflixue wrote: post #335
shakna wrote: post #40

Earlier quoted context omitted.

Clauses existing, have very little to do with it being enforceable. Vader might say he can change the deal at any point, but consumer law generally requires that what is purchased reflects what is advertised. If you don't agree to a new set of terms, because the service is changed from what you purchased, then both parties generally should still be party to the previous. Notification alone, is not enough. Agreement i…

Again, the previous terms allow them to terminate the previous contract, and ... hey look, they're exercising their rights, listed in the original contract, which you did in fact agree to. If you want to continue using the services, and know about the change, then that's legally, as cited in the actual court documents in OP, an agreement to the new terms.

> Clauses existing, have very little to do with it being enforceable.

You cannot cancel a contract for "any reason". In most jurisdictions that will be an unenforceable term.

Usage here being consent, is an unpublished ruling. It does not set precedent, it refers only to these specific circumstances, where clients sought to understand terms before choosing to continue usage.

Legally, usage with foreknowledge, is consent. Usage where you already agreed to terms implicitly, because you sought and understood them beforehand.

It will not always be an agreement to new terms.

> This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3

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